The U.S. Office of Personnel Management published a final rule in the Federal Register on December 14, 2012, abolishing the Washington, DC, Federal Wage System special wage schedule for printing and lithographic positions. The final rule incorrectly listed the page number of the interim rule published on July 13, 2012, in the words of issuance. This document corrects this error.

In a final rule published in the Federal Register on December 14, 2012 (77 FR 74347), the U.S. Office of Personnel Management (OPM) incorrectly listed the page number of the interim rule published on July 13, 2012, as 41427 instead of 41247 in the words of issuance. The page number is correctly listed in the supplementary information of the interim rule. This document corrects the error.

This final rule adjusts the number of members on the United Soybean Board (Board) to reflect changes in production levels that have occurred since the Board was reapportioned in 2009. As required by the Soybean Promotion, Research, and Consumer Information Act (Act), membership is reviewed every 3 years and adjustments are made accordingly. This change results in an increase in Board membership for Mississippi, increasing the total number of Board members from 69 to 70. The change will be effective for the 2013 nomination and appointment process.

The Office of Management and Budget (OMB) has waived the review process required by Executive Order 12866 for this action.

Executive Order 12988

This rule was reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have a retroactive effect. The Soybean Promotion, Research, and Consumer Information Act (Act) provides that nothing in this subtitle may be construed to preempt or supersede any other program relating to soybean promotion, research, consumer information, or industry information organized and operated under the laws of the United States or any State.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under § 1971 of the Act, a person subject to the Soybean Promotion, Research, and Consumer Information Order (Order) may file a petition with the Secretary of Agriculture (Secretary) stating that the Order, any provision of the Order, or any obligation imposed in connection with the Order, is not in accordance with law and requesting a modification of the Order or an exemption from the Order. The petitioner is afforded the opportunity for a hearing on the petition. After a hearing, the Secretary would rule on the petition. The Act provides that the district courts of the United States in any district in which such person is an inhabitant, or has his principal place of business, has jurisdiction to review the Secretary's ruling on the petition, if a complaint for this purpose is filed within 20 days after the date of the entry of the ruling.

Regulatory Flexibility Act

The Agricultural Marketing Service has determined that this rule will not have a significant economic impact on a substantial number of small entities as defined by the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), because it only adjusts representation on the Board to reflect changes in production levels that have occurred since the Board was reapportioned in 2009. The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly burdened. As such, these changes will not impact on persons subject to the program.

There are an estimated 589,182 soybean producers and an estimated 10,000 first purchasers who collect assessments, most of whom would be considered small businesses under the criteria established by the Small Business Administration (SBA) [13 CFR 121.201]. SBA defines small agricultural producers as those having annual receipts of less than $750,000, and small agricultural firms as those having annual receipts of less than $7,000,000.

Paperwork Reduction Act

In accordance with OMB regulations [5 CFR part 1320] that implement the Paperwork Reduction Act of 1995 [44 U.S.C. Chapter 35], the information collection and recordkeeping requirements contained in the Order and Rules and Regulations have previously been approved by OMB under OMB control number 0581-0093.

Background

The Act (7 U.S.C. 6301-6311) provides for the establishment of a coordinated program of promotion and research designed to strengthen the soybean industry's position in the marketplace, and to maintain and expand domestic and foreign markets and uses for soybeans and soybean products. The program is financed by an assessment of 0.5 percent of the net market price of soybeans sold by producers. Pursuant to the Act, an Order was made effective July 9, 1991. The Order established a Board of 60 members. For purposes of establishing the Board, the United States was originally divided into 30 geographic units. Representation on the Board from each unit was determined by the level of production in each unit. The Secretary appointed the initial Board on July 11, 1991. The Board is composed of soybean producers.

Section 1220.201(c) of the Order provides that at the end of each three (3) year period, the Board shall review soybean production levels in the geographic units throughout the United States. The Board may recommend to the Secretary modification in the levels of production necessary for Board membership for each unit.

Section 1220.201(d) of the Order provides that at the end of each three (3) year period, the Secretary must review the volume of production of each unit and adjust the boundaries of any unit and the number of Board members from each such unit as necessary to conform with the criteria set forth in § 1220.201(e): (1) To the extent practicable, States with annual average soybean production of less than 3,000,000 bushels shall be grouped into geographically contiguous units, each of which has a combined production level equal to or greater than 3,000,000 bushels, and each such group shall be entitled to at least one member on the Board; (2) units with at least 3,000,000 bushels, but fewer than 15,000,000 bushels shall be entitled to one Board member; (3) units with 15,000,000 bushels or more but fewer than 70,000,000 bushels shall be entitled to two Board members; (4) units with 70,000,000 bushels or more but fewer than 200,000,000 bushels shall be entitled to three Board members; and (5) units with 200,000,000 bushels or more shall be entitled to four Board members.

The Board was last reapportioned in 2009. The total Board membership increased from 68 to 69 members, with Ohio gaining one additional member. This change was effective with the 2010 appointments.

Currently, the Board has 69 members representing 30 geographical units. This membership is based on average production levels for the years 2004-2008 (excluding crops in years that production was the highest and that production was the lowest) as reported by the U.S. Department of Agriculture's (USDA) National Agricultural Statistics Service (NASS).

Comments

A proposed rule was published in the Federal Register (74 FR 27467) on July 10, 2012, with a 60-day comment period. USDA received one comment. The comment mainly addressed food production in the United States, which is not relevant to the rulemaking. The comment also asked that the Board be reduced from 70 members to five (5) members. Such a reduction in the number of members on the Board would not be consistent with the Act and Order. Accordingly, no change is made as a result of this comment.

The increase in representation on the Board, from 69 to 70 members, is based on average production levels for the years 2007-2011 (excluding the crops in years in which production was the highest and in which production was the lowest) as reported by NASS. The change does not affect the number of geographical units.

This final rule increases Board membership from 69 members to 70 members effective with 2013 nominations and appointments.

This rule modifies the grade requirements for potatoes handled under the Colorado potato marketing order, Area No. 2 (order). The order regulates the handling of Irish potatoes grown in Colorado and is administered locally by the Colorado Potato Administrative Committee, Area No. 2 (Committee). This rule relaxes the minimum grade requirement for size B and 1-inch to 13/4-inch diameter round, red-skinned potatoes handled under the Colorado potato marketing order from U.S. No. 1 to U.S. Commercial. This change is expected to facilitate the handling and marketing of the Area No. 2 potato crop, provide producers and handlers with increased returns, and supply consumers with increased potato purchasing options.

DATES:

Effective January 3, 2013; comments received by March 4, 2013 will be considered prior to issuance of a final rule.

ADDRESSES:

Interested persons are invited to submit written comments concerning this rule. Comments must be sent to the Docket Clerk, Marketing Order and Agreement Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Fax: (202) 720-8938; or Internet: http://www.regulations.gov. All comments should reference the document number and the date and page number of this issue of the Federal Register and will be made available for public inspection in the Office of the Docket Clerk during regular business hours, or can be viewed at: http://www.regulations.gov. All comments submitted in response to this rule will be included in the record and will be made available to the public. Please be advised that the identity of the individuals or entities submitting the comments will be made public on the Internet at the address provided above.

This rule is issued under Marketing Agreement No. 97 and Marketing Order No. 948, both as amended (7 CFR part 948), regulating the handling of Irish potatoes grown in Colorado, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under § 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This rule modifies the minimum requirements for certain potatoes handled under the order's handling regulation. This rule relaxes the minimum grade requirement for all size B (11/2-inch to 21/4-inch diameter) and 1-inch to 13/4-inch diameter round, red-skinned potatoes handled under the order to U.S. Commercial. Prior to this change, round, red-skinned potatoes in the above size ranges were required to meet or exceed the requirements of the U.S. No. 1 grade standard if such potatoes were to be shipped outside the State of Colorado. This rule is a relaxation of the handling regulation and will make the minimum grade requirements for round, red-skinned potatoes consistent with the current minimum grade requirements for all other varieties of similarly sized potatoes handled under the order. This change was unanimously recommended by the Committee at a meeting held on July 19, 2012.

Section 948.22 authorizes the issuance of grade, size, quality, maturity, pack, and container regulations for potatoes grown in the production area. Section 948.21 further authorizes the modification, suspension, or termination of regulations issued pursuant to § 948.22.

Under the Colorado potato marketing order, the State of Colorado is divided into three areas of regulation for marketing order purposes. These include: Area 1, commonly known as the Western Slope; Area 2, commonly known as San Luis Valley; and, Area 3, which consists of the remaining producing areas within the State of Colorado not included in the definition of Area 1 or Area 2. Currently, the order only regulates the handling of potatoes produced in Area 2 and Area 3. Regulation for Area 1 has been suspended.

The grade, size, and maturity regulations specific to the handling of potatoes grown in Area 2 are contained in § 948.386 of the order. The current handling regulation requires that all potatoes handled under the order must meet the minimum requirements of the U.S. No. 2 grade and be 2 inches or greater in diameter. Smaller size potatoes may be handled if such potatoes meet the requirements of certain higher grades. For all varieties, except round, red-skinned varieties, size B and 1-inch to 13/4-inch diameter potatoes may be handled if such potatoes meet the requirements of the U.S. Commercial grade. Round, red-skinned varieties of the above size profiles must meet the minimum requirements of the U.S. No. 1 grade standard to be handled under the order.

At the July 19 Committee meeting, industry participants indicated to the Committee that there is an emerging market for smaller size U.S. Commercial grade round, red-skinned potatoes for use in certain value added potato products. They further stated that the order's current U.S. No. 1 grade requirement for small-size, round, red-skinned potatoes precludes them from supplying that market. Relaxing the minimum grade requirement for such potatoes will allow area handlers to compete with other domestic potato producing regions for this developing market segment.

Changing the handling regulations to allow small-size, round, red-skinned potatoes to meet or exceed U.S. Commercial grade, instead of the more stringent U.S. No. 1 grade, will make more small potatoes available to consumers and will allow Area 2 handlers to move more of the area's potato production into the fresh market. This change is expected to benefit producers, handlers, and consumers of round, red-skinned potatoes.

Initial Regulatory Flexibility Analysis

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA)(5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

There are approximately 80 handlers of Colorado Area No. 2 potatoes subject to regulation under the order and approximately 180 producers in the regulated production area. Small agricultural service firms are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $7,000,000, and small agricultural producers are defined as those having annual receipts of less than $750,000.

During the 2010-2011 marketing year, the most recent full marketing year for which statistics are available, 15,583,512 hundredweight of Colorado Area No. 2 potatoes were inspected under the order and sold into the fresh market. Based on an estimated average f.o.b. price of $12.75 per hundredweight, the Committee estimates that 71 Area No. 2 handlers, or about 89 percent, had annual receipts of less than $7,000,000. In view of the foregoing, the majority of Colorado Area No. 2 potato handlers may be classified as small entities.

In addition, based on information provided by the National Agricultural Statistics Service, the average producer price for Colorado fall potatoes for 2010-2011 was $9.37 per hundredweight. The average annual fresh potato revenue for each of the 180 Colorado Area No. 2 potato producers is therefore calculated to be approximately $811,208. Consequently, on average, many of the Area No. 2 Colorado potato producers may not be classified as small entities.

This rule relaxes the minimum grade requirement for size B and 1-inch to 13/4-inch diameter round, red-skinned potato varieties from U.S. No. 1 grade to U.S. Commercial. Authority for this action is contained in §§ 948.21 and 948.22.

This relaxation is expected to benefit the producers, handlers, and consumers of Colorado potatoes by allowing a greater quantity of fresh potatoes from the production area to enter the market. This anticipated increase in volume is expected to translate into greater returns for handlers and producers, and more purchasing options for consumers.

After discussing possible alternatives to this rule, the Committee determined that a relaxation in the grade requirement for small-size, round, red-skinned potatoes from U.S. No. 1 to U.S. Commercial would sufficiently meet the industry's current needs while maintaining the integrity of the order. During its deliberations, the Committee considered making no changes to the handling regulations as well as relaxing the minimum grade requirement for all small-size potatoes to U.S. No. 2. The Committee believes that a relaxation in the handling regulation for small potatoes is necessary to allow handlers to pursue new markets, but lowering the grade requirements for small-size potatoes to U.S. No. 2 would erode the quality reputation of the area's potatoes. The Committee, therefore, found that there were no other viable alternatives to the recommended relaxation of the minimum grade requirements for round, red-skinned potatoes handled under the order from U.S. No. 1 to U.S. Commercial.

In accordance with the Paperwork Reduction Act of 1995, (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0178. No changes in those requirements as a result of this action are necessary. Should any changes become necessary, they would be submitted to OMB for approval.

This rule will not impose any additional reporting or recordkeeping requirements on either small or large potato handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

AMS is committed to complying with the E-government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes. In addition, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

Further, the Committee's meeting was widely publicized throughout the Colorado potato industry and all interested persons were invited to attend the meeting and participate in Committee deliberations. Like all Committee meetings, the July 19, 2012, meeting was a public meeting and all entities, both large and small, were able to express their views on this issue. Finally, interested persons are invited to submit information on the regulatory and informational impacts of this action on small businesses.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: www.ams.usda.gov/MarketingOrdersSmallBusinessGuide. Any questions about the compliance guide should be sent to Laurel May at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

This rule invites comments on a modification of the grade and maturity requirement prescribed under the Colorado potato marketing order. Any comments received will be considered prior to the finalization of this rule.

After consideration of all relevant material presented, including the Committee's recommendation, and other information, it is hereby found that this interim rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.

Pursuant to 5 U.S.C. 553, it is also found and determined upon good cause that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect and that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because: (1) This action is a relaxation of the current handling regulation; (2) handlers are already shipping potatoes from the 2012-2013 crop and may want to take advantage of this relaxation as soon as possible; (3) handlers are aware of this rule, which was initiated by the industry and unanimously recommended by the Committee at a public meeting during which interested parties had an opportunity to provide input; and (4) this rule provides a 60-day comment period and any comments received will be considered prior to finalization of this rule.

We are adopting a new airworthiness directive (AD) for all Rolls-Royce plc (RR) RB211-524G2-19; RB211-524G2-T-19; RB211-524G3-19; RB211-524G3-T-19; RB211-524H2-19; RB211-524H2-T-19; RB211-524H-36; RB211-524H-T-36; RB211-535E4-37; RB211-535E4-B-37; RB211-535E4-B-75; and RB211-535E4-C-37 turbofan engines. This AD was prompted by an investigation by RR concluding that certain intermediate-pressure (IP) turbine discs produced before 1997 by a certain supplier may contain steel inclusions. This AD requires removal of the affected IP turbine discs to inspect them for steel inclusions, and removal of the affected discs from service if they fail the inspection. This AD also requires removal from service of some IP turbine discs at reduced life limits. We are issuing this AD to prevent uncontained IP turbine disc failure, engine failure, and damage to the airplane.

DATES:

This AD becomes effective February 6, 2013. The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of February 6, 2013.

ADDRESSES:

The Docket Operations office is located at Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001.

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the Federal Register on July 11, 2012 (77 FR 40820). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

The inspection of several intermediate pressure (IP) turbine discs at past engine overhauls identified the presence of steel inclusions in these parts. Further investigation concluded that all affected parts were manufactured from billets produced before 1997 at a certain supplier who also melted steel in the same furnaces. Initial engineering evaluation concluded that the lives of the parts would not be affected by the presence of the said steel inclusions. This evaluation has been recently repeated, utilising improved structural analysis, and it is now concluded that the currently published lives of the components cannot be supported for some discs with a steel inclusion.

We are issuing this AD to prevent uncontained IP turbine disc failure, engine failure, and damage to the airplane.

Comments

We gave the public the opportunity to participate in developing this AD. We considered the comments received. The following presents the comments received on the proposal and the FAA's response to each comment.

Request To Provide Alternative to Inspection

One commenter, American Airlines, requested that we allow replacement of the removed IP turbine disc with a serviceable part as an alternative to the inspection mandated by paragraph (f) in the proposed AD. American noted that including this alternative would allow operators to avoid the added expense of an inspection of discs that are being removed from service.

We agree. We revised paragraph (f) of the Compliance section of the AD to allow replacement of an affected disc with a part eligible for installation.

Request To Redefine “Shop Visit”

One commenter, FedEx Express, requested that we redefine “shop visit” as any IP turbine disc exposed at shop visit, engine Level 3 (Refurbishment), Level 4 (Overhaul), or 05 Module Level 2 (Check and Repair). FedEx Express indicated that this change would align the AD with the current wording in RR Alert Service Bulletin (ASB) RB.211-72-AG493, dated October 12, 2012.

We do not agree. The terms `Level 3' and `Level 4' are not specific enough to be enforceable. Our definition of shop visit in the AD is consistent with the definition in MCAI AD No. 2012-0060, dated April 18, 2012. We did not change the AD based on this comment.

Request To Remove Reference to Demagnetization

Commenter Rolls-Royce requested that we remove the reference to demagnetization from Compliance paragraph (f). The disc does not need to be demagnetized as it will be magnetized as part of the Superconductive Quantitative Inductive Device (SQUID) inspection process required by paragraph (f).

We agree. We changed the references in Compliance paragraphs (f)(1) and (f)(2) from “clean, demagnetize, and perform * * *” to “clean and perform * * *”. The first sentence in paragraph (f)(1) now reads: “If below the inspection threshold, clean and perform a Superconductive Quantitative Inductive Device (SQUID) inspection of the disc at the next shop visit or before the disc reaches the inspection threshold, whichever is later.” The first sentence in paragraph (f)(2) now reads: “If above the inspection threshold, clean and perform a SQUID inspection of the disc if in the shop or, at the next shop visit, whichever occurs first.”

Request To Allow Full Life Limit for Parts That Pass Inspection

Commenter Rolls-Royce asked that we clarify in the AD that the new, lower life limits in Appendix 2 of ASB RB.211-72-AG493 do not apply to a part that has passed the SQUID inspection. Rolls-Royce noted that the maximum life as defined in Appendix 2 only limits the disc until it has had the SQUID inspection and been confirmed as inclusion-free. If the disc has successfully passed the inspection, then it can be returned to service for the remainder of its life as defined by the Time Limits Manual.

We agree. We changed the AD by adding the phrase “unless it has passed the inspection required by paragraph (f) of the AD” to paragraph (g)(3). This paragraph now reads: “Do not return to service any disc that exceeds its maximum life (in cycles), as found in Appendix 2 of RR ASB No. RB.211-72-AG493, Revision 2, dated October 12, 2012, unless it has passed the inspection required by paragraph (f) of the AD.”

Conclusion

We reviewed the available data, including the comments received, and determined that air safety and the public interest require adopting the AD with the changes described previously. We determined that these changes will not increase the economic burden on any operator or increase the scope of the AD.

Costs of Compliance

We estimate that this AD will affect about 200 engines installed on airplanes of U.S. registry. We also estimate that it will take about 12.5 work-hours per engine to inspect an IP turbine disc. The average labor rate is $85 per work-hour. In addition, 77 discs must be removed earlier than the existing Airworthiness Limitation Section requires. A prorated replacement IP turbine disc would cost about $9,925 per engine. We also estimate the cost of replacing a disc if it fails the inspection is $225,000. Based on these figures, we estimate the cost of the AD on U.S. operators to be $976,725.

Authority for This Rulemaking

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

Regulatory Findings

We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this AD:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket.

Examining the AD Docket

You may examine the AD docket on the Internet at http://www.regulations.gov; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (phone: (800) 647-5527) is provided in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

This AD was prompted by an investigation by RR concluding that certain IP turbine discs produced before 1997 by a certain supplier may contain steel inclusions. We are issuing this AD to prevent uncontained IP turbine disc failure, engine failure, and damage to the airplane.

(e) Actions and Compliance

Unless already done, do the following actions.

(f) Disc Inspection

After the effective date of this AD, use Appendix 1 and Appendix 2 of RR ASB No. RB.211-72-AG493, Revision 2, dated October 12, 2012, to determine if the IP turbine disc is below or above the inspection threshold.

(1) If below the inspection threshold, clean and perform a Superconductive Quantitative Inductive Device (SQUID) inspection of the disc at the next shop visit or before the disc reaches the inspection threshold, whichever is later. Use Appendix 4 of RR ASB No. RB.211-72-AG493, Revision 2, dated October 12, 2012, to perform the SQUID inspection.

(2) If above the inspection threshold, clean and perform a SQUID inspection of the disc if in the shop or, at the next shop visit, whichever occurs first. Use Appendix 4 of RR ASB No. RB.211-72-AG493, Revision 2, dated October 12, 2012, to perform the SQUID inspection.

(3) Do not return to service any disc that fails the inspection required by this AD.

(4) Instead of performing the inspection required by paragraph (f), you may replace an affected disc with a part eligible for installation. See Appendix 1 and Appendix 2 of RR ASB No. RB.211-72-AG493, Revision 2, dated October 12, 2012, to determine if you have an affected disc.

(g) Disc Life Intervals

(1) After the effective date of this AD, use Appendix 2 of RR ASB No. RB.211-72-AG493, Revision 2, dated October 12, 2012, to determine the maximum life (in cycles) of affected IP turbine disc(s).

(2) Remove from service any disc at the next shop visit or before it exceeds its maximum life (in cycles), whichever is later, as found in Appendix 2 of RR ASB No. RB.211-72-AG493, Revision 2, dated October 12, 2012.

(3) Do not return to service any disc that exceeds its maximum life (in cycles) as found in Appendix 2 of RR ASB No. RB.211-72-AG493, Revision 2, dated October 12, 2012, unless it has passed the inspection required by paragraph (f) of the AD.

(h) Definition of Shop Visit

For purposes of this AD, a shop visit is defined as induction into the shop where the IP and low pressure (LP) turbine module is removed from the engine, and any casing is removed from the IP and LP turbine module.

(i) Credit for Previous Actions

If you performed the actions required by paragraph (f) using RR ASB No. RB.211-72-AG493, Revision 1, dated November 11, 2011, you met the requirements of this AD.

(j) Alternative Methods of Compliance (AMOCs)

The Manager, Engine Certification Office, may approve AMOCs for this AD. Use the procedures found in 14 CFR 39.19 to make your request.

(4) You may view this service information at FAA, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7125.

(5) You may view this service information at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.

We are adopting a new airworthiness directive (AD) for certain Airbus Model A330-202, -203, -223, -243, -302, -323, -342, and -343 airplanes; and Model A340-313 airplanes. This AD was prompted by reports that a specific batch of cargo doors might have deviations in quality related to door structure, such as irregular bore holes, improper application of sealant and paint, or uncleanliness. This AD requires inspecting to identify the part and serial numbers of the forward and aft cargo doors, and replacing the affected cargo doors. We are issuing this AD to prevent the degraded structural capability of the cargo door, a primary structure, from leading to failure of the door, which could lead to a breach through the door or the door detaching from the airplane, resulting in potential rapid decompression.

DATES:

This AD becomes effective February 6, 2013.

The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of February 6, 2013.

ADDRESSES:

You may examine the AD docket on the Internet at http://www.regulations.gov or in person at the U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC.

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the Federal Register on September 20, 2012 (77 FR 58336). That NPRM proposed to correct an unsafe condition for the specified products. The Mandatory Continuing Airworthiness Information (MCAI) states:

Investigations have shown that a specific batch of cargo doors might have deviations in quality, such as irregular bore holes, improper application of sealant and paint or cleanliness. These production deviations are related to the quality of the door structure.

This condition, if not corrected, may degrade the structural integrity of the affected Forward (Fwd) and Aft cargo doors.

For the reasons described above, this [European Aviation Safety Agency (EASA)] AD requires a one-time inspection to identify the [part and serial numbers of the] Fwd and Aft cargo doors, and replacement of the affected cargo doors.

The unsafe condition is the degraded structural capability of the cargo door, a primary structure, which could lead to failure of the door, which could detach from the airplane or have a breach through the door, resulting in potential rapid decompression. Required actions include contacting the FAA or EASA (or its delegated agent) for repair instructions for any door part/serial number that cannot be identified for a specified airplane. You may obtain further information by examining the MCAI in the AD docket.Comments

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (77 FR 58336, September 20, 2012) or on the determination of the cost to the public.

Conclusion

We reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed, except for minor editorial changes. We have determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM (77 FR 58336, September 20, 2012) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (77 FR 58336, September 20, 2012).

Costs of Compliance

We estimate that this AD will affect about 6 products of U.S. registry. We also estimate that it will take about 2 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $1,020, or $170 per product.

In addition, we estimate that any necessary follow-on actions would take about 52 work-hours and require parts costing $0, for a cost of $4,420 per product. The manufacturer has agreed to reimburse these labor costs. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these parts. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. We have no way of determining the number of products that may need these actions.

Authority for This Rulemaking

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

Regulatory Findings

We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);

3. Will not affect intrastate aviation in Alaska; and

4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket.

Examining the AD Docket

You may examine the AD docket on the Internet at http://www.regulations.gov; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM (77 FR 58336, September 20, 2012), the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone (800) 647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

This AD was prompted by reports that a specific batch of cargo doors might have deviations in quality related to door structure, such as irregular bore holes, improper application of sealant and paint, or uncleanliness. We are issuing this AD to prevent the degraded structural capability of the cargo door, a primary structure, from leading to failure of the door, which could detach from the airplane or have a breach through the door, resulting in potential rapid decompression.

(f) Compliance

You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.

(g) Inspection

At the later of the times specified in paragraphs (g)(1) and (g)(2) of this AD: Inspect to identify the part number and serial number of the airplane's forward and aft cargo doors, as applicable to MSN, in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A330-52-3083, dated May 31, 2011 (for Model A330 airplanes); or Airbus Mandatory Service Bulletin A340-52-4093, dated May 31, 2011 (for Model A340 airplanes). A review of airplane maintenance records is acceptable in lieu of this inspection if the part number and serial number of the door can be conclusively determined from that review.

(1) Prior to the accumulation of 7,400 total flight cycles, or 72 months after the airplane's first flight, whichever occurs first.

(2) Within 60 days after the effective date of this AD.

(h) Replacement

If, during the inspection required by paragraph (g) of this AD, the part number and serial number of the airplane's forward and/or aft cargo doors, as applicable to airplane MSN, are identified in Airbus Mandatory Service Bulletin A330-52-3083, dated May 31, 2011 (for Model A330 airplanes); or Airbus Mandatory Service Bulletin A340-52-4093, dated May 31, 2011 (for Model A340 airplanes): Before further flight, replace the affected door with a new or serviceable door, in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A330-52-3083, dated May 31, 2011 (for Model A330 airplanes); or Airbus Mandatory Service Bulletin A340-52-4093 (for Model A340 airplanes), dated May 31, 2011.

(i) Repair

If, during the inspection required by paragraph (g) of this AD, there is any discrepancy between the installed forward and/or aft cargo doors part/serial number and the airplane MSN, as that part/serial number and MSN are identified in Airbus Mandatory Service Bulletin A330-52-3083, dated May 31, 2011 (for Model A330 airplanes); or Airbus Mandatory Service Bulletin A340-52-4093, dated May 31, 2011 (for Model A340 airplanes): Within 10 days after accomplishing the inspection, contact the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, or the European Aviation Safety Agency (EASA) (or its delegated agent), for further instructions and time limits, and accomplish those instructions within the specified time limits.

(j) Parts Installation Prohibition

As of the effective date of this AD, no person may install on any airplane a forward or aft cargo door that was removed from any airplane as required by paragraph (h) of this AD.

(k) Other FAA AD Provisions

The following provisions also apply to this AD:

(1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Branch, send it to ATTN: Vladimir Ulyanov, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone (425) 227-1138; fax (425) 227-1149. Information may be emailed to: 9-ANM-116-AMOC-REQUESTS@faa.gov. Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office. The AMOC approval letter must specifically reference this AD.

(2) Airworthy Product: For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.

(l) Related Information

Refer to MCAI EASA Airworthiness Directive 2011-0177, dated September 15, 2011 (corrected September 28, 2011), and the service information identified in paragraphs (l)(1) and (l)(2) of this AD, for related information.

(4) You may review copies of the service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.

We are superseding an existing airworthiness directive (AD) for certain The Boeing Company Model 737-300, -400, and -500 series airplanes. That AD currently requires repetitive inspections for cracking of the crown area of the fuselage skin, and corrective actions if necessary. This new AD adds repetitive inspections for cracking using different inspection methods and inspecting additional areas, and corrective actions if necessary. This new AD also requires additional repairs to previously repaired areas and repetitive inspections for loose fasteners and replacement if necessary in certain previously repaired areas. This AD also reduces certain compliance times and extends certain other compliance times. This AD was prompted by additional reports of cracking at the horizontal chem-mill steps away from the lap joints over the entire crown area, and vertical chem-mill cracks adjacent to the butt joints. We are issuing this AD to detect and correct fatigue cracking of the fuselage skin, which could cause the fuselage skin to fracture and fail, and result in rapid decompression of the airplane.

DATES:

This AD is effective February 6, 2013.

The Director of the Federal Register approved the incorporation by reference of a certain publication listed in the AD as of February 6, 2013.

The Director of the Federal Register approved the incorporation by reference of a certain other publication listed in this AD as of August 1, 2005 (70 FR 36821, June 27, 2005).

You may examine the AD docket on the Internet at http://www.regulations.gov; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (phone: 800-647-5527) is Document Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2005-13-27, Amendment 39-14164 (70 FR 36821, June 27, 2005). That AD applies to the specified products. The NPRM published in the Federal Register on January 19, 2012 (77 FR 2669). That NPRM proposed to continue to require repetitive inspections for cracking of the crown area of the fuselage skin, and corrective actions if necessary. That NPRM also proposed to add repetitive inspections for cracking using different inspection methods and would inspect additional areas, and corrective actions if necessary. That NPRM also proposed to require additional repairs to previously repaired areas and repetitive inspections for loose fasteners and replacement if necessary in certain previously repaired areas. That NPRM also proposed to reduce certain compliance times and extend certain other compliance times.

Comments

We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the proposal (77 FR 2669, January 19, 2012) and the FAA's response to each comment.

Concurrence With NPRM (77 FR 2669, January 19, 2012)

The National Transportation Safety Board stated that it fully supports the NPRM (77 FR 2669, January 19, 2012).

Request To Correct References to Repair Instructions

Boeing asked that we revise the NPRM (77 FR 2669, January 19, 2012) to correct references to certain repair instructions. Boeing stated that paragraph (n)(2)(iii) of the NPRM specifies converting the time-limited repair into a permanent repair by doing the permanent repair specified in paragraph (n)(1) of the NPRM. Boeing noted that paragraph (n)(1) of the NPRM specifies installing a permanent repair in accordance with “Part 2” of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1234, Revision 2, dated November 24, 2010; however, Part 2 does not give instructions for changing the time-limited repair to a permanent repair. Boeing stated that paragraph (t)(2) of the NPRM also incorrectly refers to converting the time-limited repair into a permanent repair by doing the permanent repair specified in paragraph (n)(1) of the NPRM.

Boeing stated that the correct instructions for converting the time-limited repair to a permanent repair are specified in Part 4 of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1234, Revision 2, dated November 24, 2010, and added that paragraphs (n)(2)(iii) and (t)(2) of the NPRM (77 FR 2669, January 19, 2012) should specify doing the permanent repair in accordance with Part 4 of the Accomplishment Instructions of that service information.

We agree that the reference to paragraph (n)(1) of this AD for doing the permanent repair identified in paragraphs (n)(2)(iii) and (t)(2) of this AD is incorrect. We have changed paragraph (n)(2)(iii) of this AD to specify doing the permanent repair in accordance with Part 4 of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1234, Revision 2, dated November 24, 2010. In addition, we have changed paragraph (t)(2) of this AD to refer to paragraph (t)(3) of this AD for the permanent repair. Paragraph (t)(3) of this AD specifies doing the permanent repair in accordance with paragraph 3.B.4. (i.e., Part 4) of the service information.

Request To Remove Certain Terminating Action

Boeing asked that we delete the last sentence in paragraph (t)(1) of the NPRM (77 FR 2669, January 19, 2012), which specified that installation of internal tear strap doublers would terminate the inspections required by paragraph (m) of the NPRM. Boeing stated that this sentence is not necessary because there are no inspection requirements in paragraph (m) of the NPRM for the areas covered by permanent repairs installed without tear strap doublers.

We agree with the commenter for the reason provided. We have deleted the referenced sentence in paragraph (t)(1) of this AD.

Request To Add Certain Terminating Action Language

Southwest Airlines (SWA) asked that we add language to paragraphs (n) and (s) of the NPRM (77 FR 2669, January 19, 2012), specifying that repairs installed in accordance with paragraphs (n) and (s) of the NPRM terminate the inspections required by paragraphs (m), (o), (p), and (q) of the NPRM.

We partially agree with the commenter's request. The repetitive inspections may be terminated after a time-limited or permanent repair has been installed, for the repaired area only. We note that paragraph (n) of this AD specifies that doing a permanent repair terminates the inspections specified in paragraph (m) of this AD for the repaired area only. We also note that paragraph (n) of this AD does not terminate paragraphs (o), (p), and (q) of this AD. Accomplishing paragraph (s) of this AD terminates the inspections required by paragraphs (o), (p), and (q) of this AD. We have changed paragraph (s) of this AD accordingly.

Request To Include Additional Service Information

SWA asked that we include the internal inspection procedure specified in Boeing 737 Nondestructive Test (NDT) Manual, Part 6, Chapter 53-30-20, as an acceptable method for accomplishing the inspections in areas covered by non-terminating repairs as required by paragraphs (m), (o), (p), and (q) of the NPRM (77 FR 2669, January 19, 2012). SWA stated that the inspection procedure in the NDT manual has been previously approved as an alternative inspection method for paragraph (s) of AD 2005-13-27, Amendment 39-14164 (70 FR 36821, June 27, 2005), in areas covered by an existing repair that do not meet the terminating repair specified in the compliance tables in Boeing Alert Service Bulletin 737-53A1234, Revision 2, dated November 24, 2010.

We disagree with the commenter's request. Operators may submit a request for approval of an alternative method of compliance (AMOC) to use the inspection procedure specified in the NDT manual for accomplishing the inspections in areas covered by non-terminating repairs, as specified in paragraph (x) of this AD. We have not changed this AD in this regard.

Request To Change Compliance Time

SWA asked that we change the compliance time for the inspections proposed by paragraphs (g), (m), (o), (p), and (q) of the NPRM (77 FR 2669, January 19, 2012) from “total flight cycles” to “flight cycles since panel replacement” for airplanes on which fuselage crown skin panels that were replaced in accordance with Boeing Service Bulletin 737-53-1306, dated September 22, 2010; Revision 1, dated March 17, 2011; or Revision 2, dated October 25, 2011. SWA stated that this modification replaces crown skin panels with new skin panels, and the new skin panels should have a threshold “from panel replacement,” and not “total airplane cycles.” SWA added that accomplishing Boeing Service Bulletin 737-53-1306, original issue, Revision 1, or Revision 2 has been approved previously as an AMOC to certain requirements in multiple ADs; including AD 2005-13-27, Amendment 39-14164 (70 FR 36821, June 27, 2005), which is being superseded by the NPRM. SWA stated that the AMOC provides approval for changes in compliance time from total flight cycles to cycles since panel replacement.

We do not agree with the commenter's request to change paragraphs (g), (m), (o), (p), and (q) of this AD. The existing AMOC discussed by the commenter is approved for the restated requirements of this AD, including paragraph (g) of this AD. Due to the extent of the replacement specified in Boeing Service Bulletin 737-53-1306, dated September 22, 2010; Revision 1, dated March 17, 2011; or Revision 2, dated October 25, 2011, and the number of ADs that affect that replacement, we have determined that clarification of the AMOCs for all these ADs should be provided in a separate AMOC letter. This will ensure that multiple parties (e.g., Flight Standards, Maintenance Repair and Overhaul facilities (MROs), and operators) have access to the approval information for the replacement in one document. We have made no change to this AD in this regard.

Request for Alternate Option for Inspections

SWA asked that we revise the NPRM (77 FR 2669, January 19, 2012) to allow the inspections in paragraph (w) of the NPRM as an alternate option for the permanent repairs required by paragraph (t) of the NPRM for airplanes on which internal tear strap doublers were not installed. SWA stated that permanent repairs installed in accordance with Boeing Special Attention Service Bulletin 737-53-1234, dated June 13, 2001; or Revision 1, dated March 31, 2005; have been evaluated and determined to meet the damage tolerance requirements of part 26 of the Federal Aviation Regulations (14 CFR Part 26), as indicated in Figure 41 of Boeing Alert Service Bulletin 737-53A1234, Revision 2, dated November 24, 2010. SWA added that accomplishing the post-repair inspections in accordance with Figure 41, at the time specified in Table 7 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1234, Revision 2, dated November 24, 2010, should be considered an alternate option to the requirements in paragraph (t) of the NPRM.

We do not agree with the commenter's request. The 60,000-flight-cycle threshold for the post-repair inspection addresses the critical outer fastener row installed with the repair doubler, and does not address the area of the tear strap doubler installed in accordance with paragraph (t)(1) of this AD. We have made no change to this AD in this regard.

Request To Provide Clarification

SWA asked that we provide clarification whether the notes in paragraph 3.B. of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1234, Revision 2, dated November 24, 2010, are applicable to paragraphs (m), (o), (p), and (q) of the NPRM (77 FR 2669, January 19, 2012).

We agree to provide clarification. The notes specified in paragraph 3.A., “General Information,” and paragraph 3.B., “Work Instructions,” of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1234, Revision 2, dated November 24, 2010, apply to all the sub-paragraphs of the Accomplishment Instructions, including the actions that correspond to the requirements of paragraphs (m), (o), (p), and (q) of this AD. We have made no change to this AD in this regard.

Explanation of Change to This AD

We have revised the heading for and the wording in paragraph (l) of this AD; this change has not changed the intent of that paragraph.

Conclusion

We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting the AD with the changes described previously—and minor editorial changes. We have determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM (77 FR 2669, January 19, 2012) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (77 FR 2669, January 19, 2012).

We also determined that these changes will not increase the economic burden on any operator or increase the scope of the AD.

We estimate the following costs to do any necessary repairs that would be required based on the results of the inspection. We have no way of determining the number of aircraft that might need these repairs:

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

Regulatory Findings

We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

(3) Will not affect intrastate aviation in Alaska, and

(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This AD applies to The Boeing Company Model 737-300, −400, and −500 series airplanes, certificated in any category, as identified in Boeing Alert Service Bulletin 737-53A1234, Revision 2, dated November 24, 2010.

This AD was prompted by reports of cracking at the horizontal chem-mill steps away from the lap joints over the entire crown area, and vertical chem-mill cracks adjacent to the butt joints. We are issuing this AD to detect and correct fatigue cracking of the fuselage skin, which could cause the fuselage skin to fracture and fail, and result in rapid decompression of the airplane.

(f) Compliance

Comply with this AD within the compliance times specified, unless already done.

(g) Retained Initial Inspections

This paragraph restates the requirements of paragraph (g) of AD 2005-13-27, Amendment 39-14164 (70 FR 36821, June 27, 2005). At the later of the times specified in paragraphs (g)(1) and (g)(2) of this AD, perform detailed and eddy current inspections for cracking of the crown area of the fuselage skin in accordance with Part 1, including the “Note,” of the Work Instructions of Boeing Special Attention Service Bulletin 737-53-1234, Revision 1, dated March 31, 2005, except as provided by paragraph (j) of this AD. Doing the inspections required by paragraph (m) of this AD terminates the inspections required by this paragraph for the corresponding inspection areas.

(1) Before the accumulation of the applicable total flight cycles specified in the “Threshold” column of Table 1 of Figure 1 of Boeing Special Attention Service Bulletin 737-53-1234, Revision 1, dated March 31, 2005.

This paragraph restates the requirements of paragraph (h) of AD 2005-13-27, Amendment 39-14164 (70 FR 36821, June 27, 2005). Repeat either the detailed or eddy current inspections specified in paragraph (g) of this AD at the applicable intervals specified in paragraph (h)(1) or (h)(2) of this AD until paragraph (i)(1) or (i)(2) of this AD has been done, as applicable. Doing the inspection required by paragraph (m) of this AD terminates the inspections required by this paragraph for the corresponding inspection area.

(2) Repeat the eddy current inspections thereafter at intervals not to exceed 3,000 flight cycles.

(i) Retained Permanent or Time-Limited Repair for Cracking Found During Inspections

This paragraph restates the requirements of paragraph (i) of AD 2005-13-27, Amendment 39-14164 (70 FR 36821, June 27, 2005). If any cracking is found during any inspection required by paragraph (g) or (h) of this AD, do the actions specified in paragraph (i)(1) or (i)(2) of this AD, in accordance with Boeing Special Attention Service Bulletin 737-53-1234, Revision 1, dated March 31, 2005, except as provided by paragraphs (j) and (k) of this AD.

(1) Before further flight, do a permanent repair (including related investigative actions and applicable corrective actions) in accordance with Part 2 of the Work Instructions of Boeing Special Attention Service Bulletin 737-53-1234, Revision 1, dated March 31, 2005. Doing a permanent repair ends the repetitive inspections required by paragraph (h) of this AD for the repaired area only.

(2) Do the actions specified in paragraphs (i)(2)(i) and (i)(2)(ii) of this AD at the time specified in the applicable paragraph. Doing a time-limited repair ends the repetitive inspections required by paragraph (h) of this AD for the repaired area only.

(i) Before further flight, do a time-limited repair (including related investigative actions and applicable corrective actions) in accordance with Part 3 of the Work Instructions of Boeing Special Attention Service Bulletin 737-53-1234, Revision 1, dated March 31, 2005.

(ii) At the times specified in Figure 8 of Boeing Special Attention Service Bulletin 737-53-1234, Revision 1, dated March 31, 2005, do the related investigative and corrective actions in accordance with Part 3 of the Work Instructions of Boeing Special Attention Service Bulletin 737-53-1234, Revision 1, dated March 31, 2005.

(j) Retained Provision for Repair per FAA

This paragraph restates the requirements of paragraph (j) of AD 2005-13-27, Amendment 39-14164 (70 FR 36821, June 27, 2005). Where Boeing Special Attention Service Bulletin 737-53-1234, Revision 1, dated March 31, 2005, specifies to contact Boeing for appropriate action: Before further flight, repair according to a method approved by the Manager, Seattle Aircraft Certification Office (ACO), FAA; or according to data meeting the certification basis of the airplane approved by an Authorized Representative for the Boeing Delegation Option Authorization Organization who has been authorized by the Manager, Seattle ACO, to make those findings; or using a method approved in accordance with the procedures specified in paragraph (x) of this AD. For a repair method to be approved, the approval must specifically reference this AD.

(k) Retained Provision, Reporting Not Required

This paragraph restates the provisions of paragraph (k) of AD 2005-13-27, Amendment 39-14164 (70 FR 36821, June 27, 2005). Although Boeing Special Attention Service Bulletin 737-53-1234, Revision 1, dated March 31, 2005, specifies reporting certain information to Boeing, this AD does not require that action.

(l) Retained Credit for Previous Actions

This paragraph restates the requirements of paragraph (l) of AD 2005-13-27, Amendment 39-14164 (70 FR 36821, June 27, 2005). Actions done before August 1, 2005, in accordance with Boeing Special Attention Service Bulletin 737-53-1234, dated June 13, 2002 (which is not incorporated by reference in this AD), are acceptable for compliance with the corresponding actions required by paragraphs (g), (h), and (i) of this AD.

(m) New Fuselage Skin Inspections at Chem-Mill Steps Common to Lap Joints

Except as provided by paragraph (v)(1) of this AD, at the applicable time specified in Tables 1 and 2 of paragraph 1.E, “Compliance,” of Boeing Alert Service Bulletin 737-53A1234, Revision 2, dated November 24, 2010: Do a non-destructive inspection (NDI) (medium frequency eddy current, magneto optical imaging, C-scan, or ultrasonic phased array) for horizontal chem-mill cracking above the S-4 and S-10 lap joints, in accordance with paragraph 3.B.1.a. of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1234, Revision 2, dated November 24, 2010, except as provided by paragraph (r) of this AD. Repeat the applicable inspections thereafter at intervals not to exceed those specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1234, Revision 2, dated November 24, 2010. Accomplishment of the inspections required by this paragraph terminates the requirements of paragraphs (g) and (h) of this AD for the corresponding inspection areas.

(n) New Permanent or Time-Limited Repair for Cracking Found During Inspections Required by Paragraph (m) of This AD

If any cracking is found during any inspection required by paragraph (m) of this AD, do the actions specified in paragraph (n)(1) or (n)(2) of this AD.

(1) Before further flight, do a permanent repair, including related investigative actions and applicable corrective actions, in accordance with Part 2 of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1234, Revision 2, dated November 24, 2010, except as provided by paragraph (v)(2) of this AD. Doing a permanent repair ends the repetitive inspections required by paragraph (m) of this AD for the repaired area only.

(2) Do the actions specified in paragraphs (n)(2)(i), (n)(2)(ii), and (n)(2)(iii) of this AD at the time specified in the applicable paragraph. Doing a time-limited repair ends the repetitive inspections required by paragraph (m) of this AD for the repaired area only.

(i) Before further flight, do a time-limited repair, including related investigative actions and applicable corrective actions, in accordance with Part 4 of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1234, Revision 2, dated November 24, 2010, except as provided by paragraph (v)(2) of this AD.

(ii) Within 3,000 flight cycles after the time-limited repair was installed as specified in paragraph (n)(2)(i) of this AD, or within 500 flight cycles after the effective date of this AD, whichever occurs later, do a detailed inspection for loose fasteners, in accordance with Part 4 of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1234, Revision 2, dated November 24, 2010. Repeat the inspection thereafter at intervals not to exceed 3,000 flight cycles until the permanent repair required by paragraph (n)(2)(iii) of this AD is done. If any loose fasteners are found, before further flight, replace the fasteners with new fasteners of the same type and size, as specified in Figures 6, 35, and 36 of Boeing Alert Service Bulletin 737-53A1234, Revision 2, dated November 24, 2010.

(iii) Within 6,000 flight cycles after the time-limited repair was installed, as specified in paragraph (n)(2)(i) of this AD, do the permanent repair, in accordance with Part 4 of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1234, Revision 2, dated November 24, 2010, except as provided by paragraph (v)(2) of this AD.

(o) New Fuselage Skin Inspections at Chem-Mill Steps Common to Shear Wrinkle Areas

Except as provided by paragraph (v)(1) of this AD, at the applicable time specified in Table 3 of paragraph 1.E, “Compliance,” of Boeing Alert Service Bulletin 737-53A1234, Revision 2, dated November 24, 2010: Do an NDI (medium frequency eddy current, magneto optical imaging, C-scan, or ultrasonic phased array) for horizontal chem-mill cracking in the shear wrinkle areas, in accordance with paragraph 3.B.1.b of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1234, Revision 2, dated November 24, 2010. Repeat the applicable inspections thereafter at intervals not to exceed those specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1234, Revision 2, dated November 24, 2010.

Except as provided by paragraph (v)(1) of this AD, at the applicable time specified in Table 4 of paragraph 1.E, “Compliance,” of Boeing Alert Service Bulletin 737-53A1234, Revision 2, dated November 24, 2010: Do an NDI (medium frequency eddy current, magneto optical imaging, C-scan, or ultrasonic phased array) for vertical chem-mill cracking at locations specified in, and in accordance with paragraph 3.B.1.c. of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1234, Revision 2, dated November 24, 2010. Repeat the applicable inspections thereafter at intervals not to exceed those specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1234, Revision 2, dated November 24, 2010.

(q) New Fuselage Skin Inspections at Chem-Mill Steps in General Pocket-to-Pocket Areas

Except as provided by paragraph (v)(1) of this AD, at the applicable time specified in Tables 5 and 6 of paragraph 1.E, “Compliance,” of Boeing Alert Service Bulletin 737-53A1234, Revision 2, dated November 24, 2010: Do an NDI (medium frequency eddy current, magneto optical imaging, C-scan, or ultrasonic phased array) for horizontal chem-mill cracking in general pocket-to-pocket areas at specified locations in and in accordance with paragraphs 3.B.1.d., 3.B.1.e., and 3.B.1.f., as applicable, of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1234, Revision 2, dated November 24, 2010. Repeat the applicable inspections thereafter at intervals not to exceed those specified in Tables 5 and 6 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1234, Revision 2, dated November 24, 2010.

(r) New Inspection Exception

For inspections required by paragraph (m) of this AD: It is not necessary to inspect the chem-mill steps under an existing repair installed using Boeing Special Attention Service Bulletin 737-53-1234, dated June 13, 2002 (which is not incorporated by reference in this AD); or Revision 1, dated March 31, 2005.

(s) New Repair of Cracking Found During Inspections Required by Paragraphs (o) Through (q) of This AD

If any crack is found during any inspection required by paragraph (o), (p), or (q) of this AD, before further flight, repair the crack using a method approved in accordance with the procedures specified in paragraph (x) of this AD. Doing this repair ends the repetitive inspections required by paragraphs (o), (p), and (q) of this AD for the repaired area only.

(t) New Actions for Airplanes on Which Repairs Have Been Done Using Previous Service Information

(1) For airplanes on which permanent repairs have been done as specified in Boeing Special Attention Service Bulletin 737-53-1234, dated June 13, 2002 (which is not incorporated by reference in this AD); or Revision 1, dated March 31, 2005; except airplanes on which internal tear strap doublers were previously installed using a repair plan approved using the procedures specified in paragraph (x) of this AD: Within 6,000 flight cycles after the effective date of this AD, install internal tear strap doublers, in accordance with paragraph 3.B.3. of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1234, Revision 2, dated November 24, 2010, except as provided by paragraph (v)(2) of this AD.

(2) For airplanes on which time-limited repairs have been installed as specified in Boeing Special Attention Service Bulletin 737-53-1234, dated June 13, 2002 (which is not incorporated by reference in this AD); or Revision 1, dated March 31, 2005; except airplanes on which the permanent repair has been installed before the effective date of this AD as specified in Boeing Special Attention Service Bulletin 737-53-1234, dated June 13, 2002 (which is not incorporated by reference in this AD); or Revision 1, dated March 31, 2005: Within 3,000 flight cycles after the time limited repair is installed, or within 500 flight cycles after the effective date of the AD, whichever occurs later, do a detailed inspection for loose fasteners, in accordance with paragraph 3.B.4. of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1234, Revision 2, dated November 24, 2010. Repeat the inspection thereafter at intervals not to exceed 3,000 flight cycles until the permanent repair is installed in accordance with paragraph (t)(3) of this AD. If any loose fasteners are found, before further flight, replace the fasteners with new fasteners of the same type and size, as specified in Figures 6, 35, and 36, as applicable, of Boeing Alert Service Bulletin 737-53A1234, Revision 2, dated November 24, 2010.

(3) For airplanes on which time-limited repairs have been installed as specified in Boeing Special Attention Service Bulletin 737-53-1234, dated June 13, 2002 (which is not incorporated by reference in this AD); or Revision 1, dated March 31, 2005; except airplanes on which the permanent repair has been installed before the effective date of this AD as specified in Boeing Special Attention Service Bulletin 737-53-1234, dated June 13, 2002, or Revision 1, dated March 31, 2005; before the effective date of this AD: Within 6,000 flight cycles after the time-limited repair is installed, or within 1,000 flight cycles after the effective date of this AD, whichever occurs later, make the repair permanent by replacing the blind fasteners in the time-limited repair with solid rivets, and install internal tear strap doublers, in accordance with paragraph 3.B.4. of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1234, Revision 2, dated November 24, 2010, except as provided by paragraph (v)(2) of this AD.

(u) New Action Not in Accomplishment Instructions of Service Information

If any crack is found after the time-limited or permanent repair is installed, and Boeing Alert Service Bulletin 737-53A1234, Revision 2, dated November 24, 2010, specifies to contact Boeing for appropriate action: Before further flight, repair the crack using a method approved in accordance with the procedures specified in paragraph (x) of this AD.

(1) Where paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1234, Revision 2, dated November 24, 2010, specifies a compliance time relative to the “release of Revision 2 of this service bulletin,” this AD requires compliance within the specified compliance time after the effective date of this AD.

(2) Where Boeing Alert Service Bulletin 737-53A1234, Revision 2, dated November 24, 2010, specifies to contact Boeing for appropriate action: Before further flight, repair the cracking using a method approved in accordance with the procedures specified in paragraph (x) of this AD.

(3) Although Boeing Alert Service Bulletin 737-53A1234, Revision 2, dated November 24, 2010, specifies reporting certain information to Boeing, this AD does not require that action.

(w) Post-Repair Inspections Not Required

The post-repair inspection specified in Table 7 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1234, Revision 2, dated November 24, 2010, is not required by this AD.

Note 2 to paragraph (w) of this AD:

The damage tolerance inspections specified in Table 7 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1234, Revision 2, dated November 24, 2010, may be used in support of compliance with section 121.1109(c)(2) or 129.109(c)(2) of the Federal Aviation Regulations (14 CFR 121.1109(c)(2) or 14 CFR 129.109(c)(2)). The corresponding actions specified in the Accomplishment Instructions and Figures 40 and 41 of Boeing Alert Service Bulletin 737-53A1234, Revision 2, dated November 24, 2010, are not required in this AD.

(x) Alternative Methods of Compliance (AMOCs)

(1) The Manager, Seattle ACO, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in the Related Information section of this AD. Information may be emailed to: 9-ANM-Seattle-ACO-AMOC-Requests@faa.gov.

(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

(3) An AMOC that provides an acceptable level of safety may be used for any repair required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD.

(4) AMOCs approved previously in accordance with AD 2005-13-27, Amendment 39-14164 (70 FR 36821, June 27, 2005), are approved as AMOCs for the corresponding requirements in this AD.

(6) You may review copies of the service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, Washington. For information on the availability of this material at the FAA, call 425-227-1221.

(7) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.

We are adopting a new airworthiness directive (AD) for all Airbus Model A330-200 Freighter series airplanes, Model A330-200 series airplanes, Model A330-300 series airplanes, Model A340-200 series airplanes, and Model A340-300 series airplanes. This AD was prompted by a report of an in-flight turn back after the nose landing gear (NLG) did not retract after take-off. This AD requires repetitive overhaul of the NLG retraction actuator. We are issuing this AD to prevent failure of the retraction actuator, which could cause collapse of the NLG after touchdown and possible injury to flightcrew and passengers.

DATES:

This AD becomes effective February 6, 2013.

The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of February 6, 2013.

ADDRESSES:

You may examine the AD docket on the Internet at http://www.regulations.gov or in person at the U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC.

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the Federal Register on September 24, 2012 (77 FR 58789). That NPRM proposed to correct an unsafe condition for the specified products. The Mandatory Continuing Airworthiness Information (MCAI) states:

An A330 aeroplane experienced an in-flight turn back due to inability to retract the NLG [nose landing gear] after take-off.

The subsequent technical investigations revealed that the NLG retraction actuator eye-end fitting was detached from the retraction actuation rod, that both the eye-end male threads and piston rod female threads were almost completely stripped, and that there was evidence of significant corrosion on these parts. Further investigations have shown that corrosion caused the retraction actuator eye failure.

This condition, if not corrected, could lead to NLG collapse after touchdown, potentially resulting in damage to the aeroplane and injury to its occupants.

For the reasons described above, this [European Aviation Safety Agency (EASA)] AD requires accomplishment of an overhaul of the NLG retraction actuator. This [EASA] AD also defines the Time Between Overhaul (TBO) for the NLG retraction actuator to be 10 years.

You may obtain further information by examining the MCAI in the AD docket.Comments

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (77 FR 58789, September 24, 2012) or on the determination of the cost to the public.

Conclusion

We reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed except for minor editorial changes. We have determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM (77 FR 58789, September 24, 2012) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (77 FR 58789, September 24, 2012).

Costs of Compliance

We estimate that this AD will affect 65 products of U.S. registry. We also estimate that it will take about 16 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $88,400 or $1,360 per product.

Should an operator elect to accomplish an optional replacement instead, we estimate that any optional replacement action would take about 16 work-hours and require parts costing $94,000 for a cost of $95,360 per product. We have no way of determining the number of products that may need these actions.

Authority for This Rulemaking

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

Regulatory Findings

We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);

3. Will not affect intrastate aviation in Alaska; and

4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket.

Examining the AD Docket

You may examine the AD docket on the Internet at http://www.regulations.gov; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM (77 FR 58789, September 24, 2012), the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone (800) 647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

This AD was prompted by a report of an in-flight turn-back after the nose landing gear (NLG) did not retract after take-off. We are issuing this AD to prevent failure of the retraction actuator, which could cause collapse of the NLG after touchdown and possible injury to flightcrew and passengers.

(f) Compliance

You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.

(g) Actions

At the applicable compliance time specified in paragraph (g)(1) or (g)(2) of this AD, whichever occurs later: Do an overhaul of the NLG retraction actuator, in accordance with the Accomplishment Instructions of Airbus Mandatory Service Bulletin A330-32-3255, dated October 13, 2011 (for Model A330 series airplanes); or Airbus Mandatory Service Bulletin A340-32-4291, dated October 13, 2011 (for Model A340 series airplanes). Repeat the overhaul thereafter at intervals not to exceed 10 years.

(1) Prior to the accumulation of 10 years since the NLG retraction actuator's first flight on an airplane, or from its first flight following its last overhaul.

(2) At the applicable time specified in paragraphs (g)(2)(i) and (g)(2)(ii) of this AD.

(i) If, on the effective date of this AD, the NLG retraction actuator has accumulated more than 8 years, and less than 14 years, from its first flight on an airplane: Within 24 months after the effective date of this AD, or prior to the accumulation of 15 years since the NLG retraction actuator's first flight on an airplane, whichever occurs first.

(ii) If, on the effective date of this AD, the NLG retraction actuator has accumulated 14 years or more since its first flight on an airplane: Within 12 months after the effective date of this AD.

(h) Parts Installation Limitation

As of the effective date of this AD, no person may install on an airplane any NLG retraction actuator, unless it has been overhauled in accordance with the requirements of this AD.

(i) Other FAA AD Provisions

The following provisions also apply to this AD:

(1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Branch, send it to ATTN: Vladimir Ulyanov, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone (425) 227-1138; fax (425) 227-1149. Information may be emailed to: 9-ANM-116-AMOC-REQUESTS@faa.gov. Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office. The AMOC approval letter must specifically reference this AD.

(2) Airworthy Product: For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.

(j) Related Information

Refer to MCAI European Aviation Safety Agency Airworthiness Directive 2012-0034, dated February 29, 2012, and the service information identified in paragraphs (j)(1) and (j)(2) of this AD, for related information.

(4) You may review copies of the service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.

The Commodity Futures Trading Commission (“Commission”) is changing the compliance dates for certain rules in the Commission's regulations governing business conduct standards for swap dealers (“SDs”) and major swap participants (“MSPs”), and certain rules requiring SDs and MSPs to engage in portfolio reconciliation and to have certain documentation with their swap counterparties. The Commission is extending the compliance date for certain rules by four months, and up to six months for others. The extended compliance dates are intended to provide SDs and MSPs with additional time to achieve compliance with certain regulations.

DATES:

Compliance Dates: The compliance date for the regulations at 17 CFR 23.201(b)(3)(ii), 23.402; 23.410(c); 23.430; 23.431(a) through (c); 23.432; 23.434(a)(2), (b), and (c); 23.440; 23.450, and 23.505 is extended until May 1, 2013; the compliance date for the regulations at 17 CFR 23.502 and 23.504 is extended until July 1, 2013.

Comment Date: The Commission will, however, consider any comments received on or before February 1, 2013 and may revise the modified compliance dates, if warranted.

ADDRESSES:

You may submit comments, identified by RIN number 3038-AC96 and Business Conduct and Documentation Requirements for Swap Dealers and Major Swap Participants, by any of the following methods:

All comments must be submitted in English, or if not, accompanied by an English translation. Comments will be posted as received to www.cftc.gov. You should submit only information that you wish to make available publicly. If you wish the Commission to consider information that may be exempt from disclosure under the Freedom of Information Act, a petition for confidential treatment of the exempt information may be submitted according to the established procedures in § 145.9 of the Commission's regulation, 17 CFR 145.9.

The Commission reserves the right, but shall have no obligation, to review, pre-screen, filter, redact, refuse or remove any or all of your submission from www.cftc.gov that it may deem to be inappropriate for publication, such as obscene language. All submissions that have been redacted or removed that contain comments on the merits of the rulemaking will be retained in the public comment file and will be considered as required under the Administrative Procedure Act and other applicable laws, and may be accessible under the Freedom of Information Act.

On July 21, 2010, President Obama signed the Dodd-Frank Act.1 Title VII of the Dodd-Frank Act 2 amended the Commodity Exchange Act (“CEA”) 3 to establish a comprehensive regulatory framework to reduce risk, increase transparency, and promote market integrity within the financial system by, among other things: (1) Providing for the registration and comprehensive regulation of SDs and MSPs; (2) imposing clearing and trade execution requirements on standardized derivative products; (3) creating rigorous recordkeeping and real-time reporting regimes; and (4) enhancing the Commission's rulemaking and enforcement authorities with respect to all registered entities and intermediaries subject to the Commission's oversight.

1See Dodd-Frank Wall Street Reform and Consumer Protection Act, Public Law 111-203, 124 Stat. 1376 (2010). The text of the Dodd-Frank Act may be accessed at http://www.cftc.gov/LawRegulation/OTCDERIVATIVES/index.htm.

2 Pursuant to Section 701 of the Dodd-Frank Act, Title VII may be cited as the “Wall Street Transparency and Accountability Act of 2010.”

3 7 U.S.C. 1 et seq.

In the two years since its enactment, the Commission has finalized 41 rules to implement Title VII of the Dodd-Frank Act. Earlier this year, the Commission, jointly with the Securities and Exchange Commission, finalized the main foundational elements of the Dodd-Frank regulatory framework by adopting regulations further defining the terms “swap dealer” and “major swap participant,” 4 as well as the regulations further defining the term “swap.” 5 The Commission also adopted regulations setting forth a comprehensive scheme for the registration process for SDs and MSPs.6 Other finalized rules include various substantive requirements applicable to SDs and MSPs under CEA section 4s,7 which address reporting and recordkeeping,8 business conduct standards,9 documentation standards,10 duties,11 and designation of chief compliance officers.12

Among other things, upon registration, an SD or MSP must submit documentation demonstrating its compliance with any Commission regulation issued pursuant to section 4s(e), (f), (g), (h), (i), (j), (k), or (l) of the CEA that is applicable to it and for which the compliance date has passed. Such Commission regulations include business conduct standards under subpart H of part 23 of the Commission's regulation promulgated under section 4s(h) of the CEA, documentation standards under subpart I of part 23 of the Commission's regulations promulgated under section 4s(i) of the CEA, and reporting and recordkeeping requirements under subpart F of part 23 of the Commission's regulations promulgated under section 4s(f) of the CEA.

With respect to business conduct standards with counterparties, section 4s(h) of the CEA provides the Commission with both mandatory and discretionary rulemaking authority to impose business conduct standards on SDs and MSPs in their dealings with counterparties, including Special Entities, and section 4s(i) of the CEA establishes swap documentation standards for SDs and MSPs.

Pursuant to section 4s(h) of the CEA, on December 22, 2010, the Commission published in the Federal Register proposed subpart H of part 23 of the Commission's regulations.13 There was a 60-day period for the public to comment on the proposing release. On May 4, 2011, the Commission published in the Federal Register a notice to re-open the public comment period for an additional 30 days, which ended on June 3, 2011.14 On February 17, 2012, the Commission adopted as final rules subpart H to part 23, which set forth business conduct standards for swap dealers and major swap participants in their dealings with counterparties.15 A number of the Commission's rules under subpart H of part 23 require SDs and MSPs to provide or obtain specific information from their counterparties prior to entering into (or in some cases, offering to enter into) a swap with such counterparties.16 Subpart H of part 23 permits SDs and MSPs to rely on written representations from their counterparties and standardized disclosures, each of which may require amendments or supplements to an SD's or MSP's relationship documentation with such counterparties prior to entering into a swap with such counterparties.17

16See, e.g., § 23.402(b) (requiring SDs to obtain essential facts about their counterparty prior to execution of a transaction); § 23.430(a) (requiring SDs and MSPs to verify that a counterparty meets the eligibility standards for an eligible contract participant before offering to enter into or entering into a swap with such counterparty); and § 23.431(a) (requiring SDs and MSPs to provide material information concerning a swap to its counterparty at a reasonably sufficient time prior to entering into the swap).

17See § 23.402(d), (e), and (f).

SDs and MSPs are required to comply with the requirements found in subpart H to part 23 by January 1, 2013.18

18 The external business conduct standards final rule required that swap dealers and major swap participants must comply with the rules in subpart H of part 23 on the later of 180 days after the effective date of these rules or the date no which swap dealers or major swap participants are required to apply for registration pursuant to Commission rule 3.10. However, in a subsequent rulemaking, the compliance date for §§ 23.402; 23.410(c); 23.430; 23.431(a)-(c); 23.432; 23.434(a)(2), (b), and (c); 23.440; and 23.450 was deferred until January 1, 2013. See Confirmation, Portfolio Reconciliation, Portfolio Compression, and Swap Trading Relationship Documentation Requirements for Swap Dealers and Major Swap Participants, 77 FR 55904, 55942 (Sept. 11, 2012).

Section 4s(i)(1) of the CEA requires SDs and MSPs to “conform with such standards as may be prescribed by the Commission by rule or regulation that relate to timely and accurate confirmation, processing, netting, documentation, and valuation of all swaps.” Under section 4s(i)(2), the Commission is required to adopt rules “governing documentation standards for swap dealers and major swap participants.” The Commission proposed the regulations on swap confirmation, portfolio reconciliation, and portfolio compression on December 28, 2010.19 In a separate rulemaking, on February 8, 2011, the Commission proposed regulations governing swap documentation, including what documentation would be required to be kept by the SD or MSP when it transacts with a counterparty that exercises its rights under the end-user clearing exception from the mandatory clearing requirement under section 2(h)(7) of the CEA.20 There was a 60-day comment period for both proposals. On September 11, 2012, the Commission issued final rules governing swap confirmation (§ 23.501), portfolio reconciliation (§ 23.502), portfolio compression (§ 23.503), and swap trading relationship documentation (§ 23.504), and end user exception documentation (§ 23.505).21 Among other things, § 23.502 requires SDs and MSPs to agree in writing with each counterparty on the terms of conducting portfolio reconciliation.22 Section 23.504 requires that an SD or MSP execute swap trading relationship documentation meeting the requirements of the rule with a counterparty prior to or contemporaneously with entering into a swap transaction with such counterparty.23 Section 23.505 requires, with an exception, that SDs and MSPs, when transacting with market participants claiming the exception to clearing under 2(h)(7) of the CEA, obtain documentation sufficient to provide a reasonable basis on which to believe that its counterparty meets the statutory conditions required for the exception.24

With regard to the portfolio reconciliation requirements found in § 23.502, the Commission staggered the compliance dates by providing extended compliance dates for those SDs and MSPs that have not been previously regulated by a prudential regulator, and thus are least likely to have the infrastructure in place to begin regular reconciliation with their counterparties.25 SDs and MSPs that have been previously regulated by a prudential regulator need not comply with § 23.502 until December 11, 2012. SDs and MSPs that have not been previously regulated need not comply with § 23.502 until March 11, 2013. The earliest that an SD or MSP would be required to comply with the swap trading relationship documentation requirements found in § 23.504 is January 1, 2013.26 Additionally, the earliest that an SD or MSP would be required to comply with the documentation requirements found in § 23.505 is December 31, 2012.

25 77 FR 55904, 55941-42 (Sept. 11, 2012).

26 The current compliance schedule associated with § 23.504 is as follows: With respect to swap transactions with SDs, security-based swap dealers, MSPs, major security-based swap participants, or any private fund, as defined in section 202(a) of the Investment Advisers Act of 1940, that is not a third-party subaccount (defined below) and that executes 200 or more swaps per month based on a monthly average over the 12 months preceding this adopting release (active funds), SDs and MSPs must comply with § 23.504 by January 1, 2013. With respect to swap transactions with commodity pools; private funds as defined in section 202(a) of the Investment Advisers Act of 1940 other than active funds; or persons predominantly engaged in activities that are in the business of banking, or in activities that are financial in nature as defined in section 4(k) of the Bank Holding Company Act of 1956, provided that the entity is not an account that is managed by an investment manager that (1) is independent of and unaffiliated with the account's beneficial owner or sponsor, and (2) is responsible for the documentation necessary for the account's beneficial owner to document swaps as required under section 4s(i) of the CEA (third-party subaccounts), SDs and MSPs must comply with § 23.504 by April 1, 2013. With respect to swap transactions with any other counterparty, SDs and MSPs must comply with § 23.504 by July 1, 2013. 77 FR 55904, 55940 (Sept. 11, 2012). However, in a final rule recently adopted by the Commission, the compliance schedules for active funds was amended by requiring private funds to calculate the number of swaps they enter as a monthly average over the past 12 months preceding November 1, 2012.

Section 4s(f)(1) of the CEA requires SDs and MSPs to “make such reports as are required by the Commission by rule or regulation regarding the transactions and positions and financial condition of the registered swap dealer or major swap participant.” Under section 4s(f)(1)(B)(i) and (ii) of the CEA, the Commission was authorized to prescribe the books and records requirements of “all activities related to the business of swap dealers and major swap participants.” On December 9, 2010, the Commission proposed § 23.201, which set forth the records SDs and MSPs must maintain.27 After a 60-day period for the public to comment on the proposal, the Commission published a Federal Register notice that re-opened the comment period for an additional 30 days ending on June 3, 2011.28 On April 3, 2012, the Commission adopted final rules governing, among other requirements, general records requirements for SDs and MSPs (§ 23.201).29 The earliest that an SD or MSP would be required to comply with § 23.201 is December 31, 2012.30

30See 77 FR 20128, 20165 (Apr. 3, 2012). § 23.201(a)(1) is currently the subject of a staff no-action letter that was published on October 26, 2012, which provided no-action relief from compliance with § 23.201(a)(1) until March 31, 2013. See CFTC Letter No. 12-29, Request for No-Action Relief for Swap Dealers and Major Swap Participants from Compliance with Certain Internal Business Conduct Requirements Found in subpart F to part 23 of the CFTC's Regulations (http://www.cftc.gov/ucm/groups/public/@lrlettergeneral/documents/letter/12-29.pdf).

II. Compliance Date Extension for Certain Business Conduct and Documentation Requirements for Swap Dealers and Major Swap Participants

Subsequent to the issuance of the above-identified rules, the Commission received requests from a variety of market participants for additional time to achieve compliance with the documentation requirements of such rules.31 More specifically, market participants requested that the Commission extend the compliance dates for the provisions of subpart H of part 23 that involve documentation,32 the compliance dates for the provisions of § 23.502 (Portfolio Reconciliation), which has a significant documentation component, and the compliance dates for the provisions of § 23.504 (Swap Trading Relationship Documentation),33 which also has a significant documentation component, to facilitate an orderly transition to the new regulatory regime.

In their letter, ISDA states that in order to facilitate an efficient transition to compliance, it has sponsored a number of documentation protocols for its members and other market participants, where amendments or supplements required by the Commission's regulations are effected through delivery of an adherence letter by each party to the underlying document to be amended (i.e., a master agreement), and provides for additional bilateral delivery requirements in order to effectuate the addition of supplemental terms.34

34See http://www2.isda.org/dodd-frank-documentation-initiative/.

ISDA published its first Dodd-Frank protocol in August 2012, focused on facilitating compliance with several new Commission regulations, including those found in part 23.35 Pursuant to this first protocol, each party that submits an adherence letter must also deliver a completed questionnaire to another protocol participant for the addition of supplemental terms to be effective with respect to that protocol participant. To facilitate the delivery of completed questionnaires, ISDA, together with Markit, have developed a technology-based solution to automate the information-gathering process and provide sharing of submitted data and documents to permissioned counterparties.

ISDA has represented to the Commission that, despite an extensive counterparty outreach and education effort by its members, only 17.5% of counterparties to prospective SDs and MSPs have submitted an adherence letter for its first Dodd-Frank protocol and less than 1% have submitted the completed questionnaires necessary for SDs and MSPs to make use of the protocol and integrate necessary counterparty information into their compliance systems. ISDA has represented that more time is needed for these counterparties to understand the Commission's requirements, to understand the legal consequences of adhering to the protocol, and to gather the information needed to complete the questionnaire from principals and beneficial owners.

In addition, ISDA states that Hurricane Sandy has hampered the ability of SDs, MSPs, and their counterparties to complete the documentation process necessary to comply with the Commission's regulations within the original compliance periods. ISDA states that Hurricane Sandy shut down institutions and vendors, depleted staff and severely damaged development efforts in a number of compliance areas—producing a knock-on effect across institutional (and vendor) compliance efforts (including delays at Markit—the provider of protocol automation mechanisms). Further, specifically with respect to the January 1, 2013 compliance date for subpart H of part 23 of the Commission's regulations, ISDA has represented that compliance obstacles are compounded by industry code freezes, which are typically put into effect near the calendar year-end to ensure a stable IT environment for the closing of books and records. The freezes limit the ability of firms to make adjustments to IT infrastructure related to the delivery of required disclosure and the re-onboarding of counterparties in accordance with the counterparty characteristics provided in response to the first Dodd-Frank protocol.

Absent completion of the protocol process by a counterparty, or completion of bilateral amendments to trading documentation with the equivalent effect, an SD or MSP that continues to enter into swaps with such counterparty would be in violation of multiple Commission regulations contained in part 23. In order to avoid such violations of Commission regulations, ISDA has represented that many SDs and MSPs will stop entering into swaps with counterparties that have not completed the protocol process by December 31, 2012, which could result in a sudden and dramatic drop in the number of participants in the swap markets. ISDA states that the resulting decrease in liquidity would damage all market participants as well as the broader economy.

ISDA has further represented that market participants are working diligently toward publishing a second Dodd-Frank protocol covering other Commission rules requiring documentation supplements, including §§ 23.502 and 23.504, but require additional time to complete the review process and implement the protocol. ISDA states that the pace of implementation of its second Dodd-Frank protocol has been adversely affected by the difficulty of reaching agreement on the valuation methodologies required by § 23.504(b)(4),36 the developmental challenges to reaching the agreement on reconciliation processes required by § 23.502(a)(1), the consumption of legal and operational resources by the implementation of the first Dodd-Frank protocol, and the effects of Hurricane Sandy discussed above. Accordingly, ISDA has represented that an extension of the compliance dates for §§ 23.502 and 23.504 would allow for a smooth and orderly progression to compliance with such rules and avoid unnecessary market disruption.

36 Commission regulation § 23.504(b)(4) requires SDs and MSPs to agree with their counterparties, prior to the execution of a swap, on the process for determining the value of such swap at any time from execution to the termination, maturity, or expiration of such swap.

For reasons described above, the Commission has decided to defer the compliance dates for §§ 23.201(b)(3)(ii), 23.402; 23.410(c); 23.430; 23.431(a)-(c); 23.432; 23.434(a)(2), (b), and (c); 23.440; 23.450; and 23.505 of subpart F, subpart H, and subpart I of part 23 until May 1, 2013. In addition, the Commission has decided to defer the compliance dates for § 23.502 (Portfolio Reconciliation) and § 23.504 (Swap Trading Relationship Documentation) 37 of subpart I of part 23 until July 1, 2013.38 Compliance dates for all other provisions of subpart F, subpart H, and subpart I of part 23 remain unchanged. All market participants are subject to the new compliance dates regardless of whether they participate in any protocol sponsored by ISDA.

37 As discussed in note 26 supra, the Commission imposed a staggered compliance schedule for § 23.504, establishing three separate compliance dates based on the type of counterparty. The compliance date established herein—July 1, 2013—provides SDs and MSPs with a single compliance date for § 23.504, that is applicable for all types of counterparties.

38 The Commission's decision to defer compliance does not reflect an endorsement of the industry-led effort, nor does it imply that the Commission has reviewed the documentation protocol for compliance with Commission rules.

III. Related MattersA. Administrative Law Matters and Request for Comments

The Administrative Procedure Act 39 (“APA”) generally requires an agency to publish a notice of a proposed rulemaking in the Federal Register.40 This requirement does not apply, however, when the agency “for good cause finds * * * that notice and public procedure are impracticable, unnecessary, or contrary to the public interest.” 41 Moreover, while the APA requires generally that an agency publish an adopted rule in the Federal Register 30 days before it becomes effective, this requirement does not apply if the agency finds good cause to make the rule effective sooner.42

39 5 U.S.C. 553.

40 5 U.S.C. 553(b).

41Id.

42 5 U.S.C. 553(d).

The Commission, for good cause, finds that notice and solicitation of comment regarding the amendments is impracticable, unnecessary and contrary to the public interest. As of December 3, 2012, the CFTC has finalized over 41 new rulemakings pursuant to the Dodd-Frank Act, with each rulemaking imposing significant new regulatory requirements on market participants. In the aggregate, the rulemakings establish a robust and comprehensive registration and regulatory framework intended to achieve the overarching goals of the Dodd-Frank Act, as detailed in Section I above. In promulgating the final rules, the Commission constructed a phased implementation schedule that was intended to allow market participants to achieve full compliance through an orderly and effective process over a period of time. Market participants, including a trade association, buy-side firms and sell-side dealers, have represented to the Commission that they have been diligently preparing to comply with the part 23 rules, in accordance with the phased implementation schedule. The Commission anticipates that the phased implementation schedule for most rules promulgated under part 23 will continue, on schedule, without need for delay.

Notwithstanding the Commission's efforts to implement the business conduct standards rules required under the Dodd-Frank Act in a timely manner, the Commission has determined that, due to circumstances beyond the Commission's control, a short delay in the implementation schedule for a limited set of part 23 rules is necessary. As discussed in greater detail in Section II above, ISDA has represented that, despite an extensive counterparty outreach and education effort by its members, a relatively small percentage of counterparties have fully executed the necessary documentation to comply with the provisions of subpart H of part 23 that involve documentation. ISDA has represented that more time is needed for these counterparties to understand the Commission's requirements, to understand the legal consequences of adhering to the required documentation, and to gather the information needed to complete the questionnaire from principals and beneficial owners. ISDA further represented that without additional time to address that relatively narrow scope of documentation rules, a sudden and dramatic drop in the number of participants in the swap markets could occur, and the resulting decrease in liquidity would damage all market participants as well as the broader economy.

The extended compliance dates provided herein do not include all business conduct standards promulgated by the Commission. Specifically, compliance dates for § 23.410(a) and (b), § 23.433, and § 23.434(a)(1) are not being extended. Consequently, fundamental counterparty protections relating to (i) prohibitions on fraud, manipulation and abusive practices, (ii) fair dealings in communications, and (iii) reasonable diligence regarding recommended swaps would not be affected by delayed compliance.

Accordingly, for the reasons discussed above, the Commission finds good cause to extend the compliance dates for a short period, for a limited number of rules promulgated under part 23, to enable market participants to continue the work necessary to achieve full compliance. Specifically, the compliance date for §§ 23.201(b)(3)(ii), 23.402; 23.410(c); 23.430; 23.431(a) through (c); 23.432; 23.434(a)(2), (b), and (c); 23.440; 23.450, and 23.505 is delayed until May 1, 2013, providing an additional 4 months from the original compliance date. Likewise, the compliance date for § 23.502 and § 23.504 is deferred until July 1, 2013, providing an additional 6 months from the original date.43 Compliance dates for all other provisions of part 23 remain unchanged. The Commission anticipates that the amended compliance dates will enable market participants to achieve full compliance with the affected rules prior to the expiration of the amended compliance period.

43 The Commission's decision to defer compliance does not reflect an endorsement of the industry-led effort, nor does it imply that the Commission has reviewed the documentation protocol for compliance with Commission rules. All market participants are subject to the new compliance dates regardless of whether they participate in the protocol.

Although the Commission is dispensing with prior notice of proposed rulemaking, the Commission is soliciting written comments on the changes to compliance dates affected by this release within 30 days after publication of this release in the Federal Register. The Commission will consider those comments and make changes to the amendments if necessary.

B. Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995 (PRA), an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.44 The changes to compliance dates affected by this release will not impose any new recordkeeping or information collection requirements, or other collections of information that require approval of the Office of Management and Budget under the PRA. The Commission invites public comment on the accuracy of its estimate that no additional information collection requirements or changes to existing collection requirements would result from the rules proposed herein.

44 44 U.S.C. 3501 et seq.

C. Considerations of the Costs and Benefits

Section 15(a) of the CEA requires the Commission to consider the costs and benefits of its actions before promulgating a regulation under the CEA or issuing an order. Section 15(a) further specifies that the costs and benefits shall be evaluated in light of the following five broad areas of market and public concern: (1) Protection of market participants and the public; (2) efficiency, competitiveness, and financial integrity of futures markets; (3) price discovery; (4) sound risk management practices; and (5) other public interest considerations.

1. Background

The Commission is changing its compliance dates for amendments to specific sections of subparts H, I and F of part 23 of the Commission regulations. Subpart H to part 23 sets forth business conduct standards for SDs and MSPs in their dealings with counterparties. SDs and MSPs are required to comply with the requirements found in subpart H to part 23 by January 1, 2013. The changes to compliance dates for §§ 23.402; 23.410(c); 23.430; 23.431(a) through (c); 23.432; 23.434(a)(2), (b), and (c); 23.440; and 23.450 contained in subpart H rules will extend the compliance dates for these provisions until May 1, 2013. Compliance dates for all other provisions of subpart H of part 23 remain unchanged.

With regard to the portfolio reconciliation requirements found in § 23.502, for those SDs and MSPs that have been previously regulated by a prudential regulator, the Commission had provided for a compliance date of December 11, 2012. The compliance date for SDs and MSPs that have not been previously regulated was March 11, 2013. The earliest that an SD or MSP would be required to comply with the swap trading relationship documentation requirements of § 23.504 is January 1, 2013. The earliest that an SD or MSP would be required to comply with the end user documentation requirements of § 23.505 is December 31, 2012. The changes to compliance dates for §§ 23.502 and 23.504 contained in subpart I will extend the compliance dates for these provisions until July 1, 2013. The changes to compliance dates for § 23.505 will extend the compliance date for this rule until May 1, 2013.

With regard to the general records requirements found in § 23.201 of subpart F of part 23, the earliest that an SD or MSP would be required to comply with such requirements is December 31, 2012. The changes to compliance dates for § 23.201 will extend the compliance date for certain provisions of this rule until May 1, 2013.

The changes to compliance dates being adopted do not change the substance of the rules; rather, they merely provide additional time by which parties can comply. As such, the costs and benefits of the Commission's action relate only to the additional time provided.

2. Costs

The Commission does not anticipate there being any new, quantifiable costs attributable to these changes to compliance dates being adopted because it is only extending the compliance dates for certain requirements in part 23 of the Commission's regulations. At the same time, however, the Commission is mindful that a delay in the protections afforded by the regulations could result in costs to the public, even if the same is not amenable to quantification. The Commission believes, however, that these costs are mitigated by the maintenance of various other provisions relating to (i) prohibitions on fraud, manipulation and abusive practices, (ii) fair dealings in communications, and (iii) reasonable diligence regarding recommended swaps. These provisions are unaffected by delayed compliance from this extension. The Commission invites comments from the public on any costs, quantitative and qualitative, arising from the delay granted by the changes to compliance dates being adopted.

3. Benefits

The additional time for compliance provided for in this release will yield substantial benefit for market participants and the public alike. Absent this extension, market participants would be required to implement temporary solutions while the more permanent, industry wide solutions described earlier are finalized. The Commission believes that this duplication of efforts to achieve compliance would impose extensive burdens and costs on parties without any concomitant benefit to the public. Moreover, the Commission is concerned that based on the representations made by market participants, absent the changes to compliance dates being adopted, market participants might exit the market or curtail their swaps activity due to a lack of legal certainty and protection afforded by Commission relief. If that were to occur, the Commission expects that reduced market liquidity would increase the costs of hedging, which would then be passed on the public in the form of higher costs.

4. Section 15(a)

Section 15(a) of the CEA requires the Commission to consider the effects of its actions in light of the following five factors:

a. Protection of Market Participants and the Public

The Commission believes that by extending the compliance date for certain regulations in part 23, market participants will be able to continue to participate in the swaps market without concerns about potential consequences of failure to comply with the specified regulations. This will, in turn, protect the public by ensuring that the economy does not suffer as a result of any unintended consequences that may have arisen if market participants exited the swaps market. The Commission recognizes that any delay in compliance with the aforementioned business conduct and documentation requirements continues to leave the public without the protections and attendant benefits of those requirements. However, the Commission believes that delaying compliance for only certain business conduct and documentation requirements, while retaining the original compliance dates for fundamental counterparty protections relating to (i) prohibitions on fraud, manipulation and abusive practices, (ii) fair dealings in communications, and (iii) reasonable diligence regarding recommended swaps, will mitigate those effects while avoiding this risk that market participants will exit the market due to legal uncertainty.

b. Efficiency, Competitiveness, and Financial Integrity of Markets

The Commission believes that extending the compliance dates for the aforementioned rules will help protect the efficiency and competitiveness of the markets by obviating the need to stop transacting in swaps due to delay in complying with specific Commission regulations. It will also strengthen the financial integrity of markets by ensuring that market participants do not transact in the swaps markets while not being in full compliance with these regulations.

c. Price Discovery

If concerns regarding non-compliance results in a reduction in participation by a large number of market participants, such a decrease in swaps activity will adversely impact the price discovery process of the swaps markets.

d. Sound Risk Management

If counterparties refrain from transacting in swaps, the ability of other market participants to hedge their risks using these instruments may suffer. By mitigating the concerns of market participants regarding compliance with Commission rules, the changes to compliance dates being adopted herein help ensure that, while firms diligently complete the compliance requirements, they can continue entering into swap transactions to hedge their business and investment risks.

e. Other Public Interest Considerations

The Commission has not identified an impact on other public interest considerations, other than those mentioned above, as a result of the changes to compliance dates being adopted herein, but seeks comment as to any potential impact on this and other 15(a) factors.

Issued in Washington, DC on December 18, 2012, by the Commission.Sauntia S. Warfield,Assistant Secretary of the Commission.Appendix to Business Conduct and Documentation Requirements for Swap Dealers and Major Swap Participants—Commission Voting SummaryNote:

The following appendices will not appear in the Code of Federal Regulations.

Appendix 1—Commission Voting Summary

On this matter, Chairman Gensler and Commissioners Sommers, Chilton, O'Malia and Wetjen voted in the affirmative; no Commissioner voted in the negative.

The Food and Drug Administration (FDA) is amending the animal drug regulations to reflect approval actions for new animal drug applications (NADAs) and abbreviated new animal drug applications (ANADAs) during October 2012. FDA is also informing the public of the availability of summaries of the basis of approval and of environmental review documents, where applicable.

FDA is amending the animal drug regulations to reflect original and supplemental approval actions during October 2012, as listed in table 1 of this document. In addition, FDA is informing the public of the availability, where applicable, of documentation of environmental review required under the National Environmental Policy Act (NEPA) and, for actions requiring review of safety or effectiveness data, summaries of the basis of approval (FOI Summaries) under the Freedom of Information Act (FOIA). These public documents may be seen in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday. Persons with access to the Internet may obtain these documents at the Center for Veterinary Medicine FOIA Electronic Reading Room: http://www.fda.gov/AboutFDA/CentersOffices/OfficeofFoods/CVM/CVMFOIAElectronicReadingRoom/default.htm.

This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.

List of Subjects21 CFR Part 520

Animal drugs.

21 CFR Part 558

Animal drugs, Animal feeds.

Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, 21 CFR parts 520 and 558 are amended as follows:

PART 520—ORAL DOSAGE FORM NEW ANIMAL DRUGS1. The authority citation for 21 CFR part 520 continues to read as follows:Authority:

21 U.S.C. 360b.

2. In § 520.100, revise paragraph (b)(4) and the introductory text in paragraph (d)(1) to read as follows:§ 520.100 Amprolium.

(b) * * *

(4) No. 061623 for use of products described in paragraphs (a)(1) and (a)(2) of this section as in paragraph (d) of this section.

(d) * * * (1) Growing chickens, turkeys, and laying hens. It is used in drinking water as follows:

PART 558—NEW ANIMAL DRUGS FOR USE IN ANIMAL FEEDS3. The authority citation for 21 CFR part 558 continues to read as follows:Authority:

21 U.S.C. 360b, 371.

4. In § 558.366, in paragraph (d), amend the table as follows:a. Revise the entries for “90.8 to 181.6 (0.01 to 0.02 pct)”.b. In the entry for “113.5 (0.0125 pct)”, in the entry for “Chickens; aid in preventing outbreaks of cecal (Eimeria tenella) and intestinal (E. acervulina, E. maxima, E. necatrix, and E. brunetti) coccidiosis”, remove “066104” from the “Sponsor” column.c. In the entry for “113.5 (0.0125 pct)”, in the entry for “Bacitracin methylene disalicylate 30”, remove “066104” from the “Sponsor” column.

The revisions read as follows:

§ 558.366 Nicarbazin.

(d) * * *

Nicarbazin in

grams per ton

Combination in

grams per ton

Indications for useLimitationsSponsor* * * * * * *90.8 to 181.6 (0.01 to 0.02 pct)Broiler chickens: As an aid in preventing outbreaks of cecal (Eimeria tenella) and intestinal (E. acervulina, E. maxima, E. necatrix, and E. brunetti) coccidiosis.Feed continuously as sole ration from time chicks are placed on litter until past the time when coccidiosis is ordinarily a hazard. Do not use as a treatment for coccidiosis. Do not feed to laying hens. Withdraw 4 days before slaughter for use levels at or below 113.5 g/ton. Withdraw 5 days before slaughter for use levels above 113.5 g/ton.066104Bacitracin methylene disalicylate 4 to 50 and roxarsone 22.7 to 45.4 Broiler chickens: As an aid in preventing outbreaks of cecal (Eimeria tenella) and intestinal (E. acervulina, E. maxima, E. necatrix, and E. brunetti) coccidiosis; and for increased rate of weight gain and improved feed efficiency.Feed continuously as sole ration from time chicks are placed on litter until past the time when coccidiosis is ordinarily a hazard; do not use as a treatment for outbreaks of coccidiosis. Discontinue medication 5 days before marketing the birds for human consumption to allow for elimination of the drug from edible tissue. Do not feed to laying hens in production. Nicarbazin as provided by No. 066104; bacitracin methylene disalicylate and roxarsone by No. 046573 in § 510.600(c) of this chapter.066104Bacitracin methylene disalicylate 30Broiler chickens: As an aid in preventing outbreaks of cecal (Eimeria tenella) and intestinal (E. acervulina, E. maxima, E. necatrix, and E. brunetti) coccidiosis; and for increased rate of weight gain and improved feed efficiency.Feed continuously as sole ration from time chicks are placed on litter until past the time when coccidiosis is ordinarily a hazard. Do not use as a treatment for coccidiosis. Do not feed to laying hens. Withdraw 4 days before slaughter for use levels at or below 113.5 g/ton. Withdraw 5 days before slaughter for use levels above 113.5 g/ton.066104Penicillin 2.4 to 50Broiler chickens: As an aid in preventing outbreaks of cecal (Eimeria tenella) and intestinal (E. acervulina, E. maxima, E. necatrix, and E. brunetti) coccidiosis, and for increased rate of weight gain and improved feed efficiency.Feed continuously as sole ration from time chicks are placed on litter until past the time when coccidiosis is ordinarily a hazard; do not use as a treatment for outbreaks of coccidiosis. Do not use in flushing mashes. Do not feed to chickens producing eggs for human consumption. Discontinue medication 5 days before marketing the birds for human consumption to allow for elimination of the drug from edible tissue. Penicillin as procaine penicillin G. Nicarbazin and penicillin as provided by No. 066104 in § 510.600(c) of this chapter.066104Penicillin 2.4 to 50 and roxarsone 22.7 to 45.4Broiler chickens: As an aid in preventing outbreaks of cecal (Eimeria tenella) and intestinal (E. acervulina, E. maxima, E. necatrix, and E. brunetti) coccidiosis, and for increased rate of weight gain and improved feed efficiency, and improved pigmentation.Feed continuously as sole ration from time chicks are placed on litter until past the time when coccidiosis is ordinarily a hazard; do not use as a treatment for outbreaks of coccidiosis. Feed as the sole source of organic arsenic; drug overdose or lack of water may result in leg weakness; do not use in flushing mashes. Discontinue medication 5 days before marketing the birds for human consumption to allow for elimination of the drug from edible tissue. Do not feed to laying hens in production. Penicillin as procaine penicillin G. Nicarbazin and penicillin as provided by No. 066104; roxarsone by No. 046573 in § 510.600(c) of this chapter.066104* * * * * * *Dated: December 21, 2012Bernadette Dunham,Director, Center for Veterinary Medicine.[FR Doc. 2012-31234 Filed 12-31-12; 8:45 am]BILLING CODE 4160-01-PDEPARTMENT OF HOMELAND SECURITYCoast Guard33 CFR Part 165[USCG-2012-1074]RIN 1625-AA11Regulated Navigation Area; Reporting Requirements for Barges Loaded With Certain Dangerous Cargoes, Inland Rivers, Eighth Coast Guard District; Extension of Stay (Suspension)AGENCY:

Coast Guard, DHS.

ACTION:

Temporary final rule.

SUMMARY:

The Commander, Eighth Coast Guard District is extending the previously published stay (suspension) of reporting requirements under the Regulated Navigation Area (RNA) established by 33 CFR 165.830 for barges loaded with certain dangerous cargoes (CDC barges) in the inland rivers of the Eighth Coast Guard District. A two year stay was previously published at 76 Federal Register (FR) 1360 (January 10, 2011), which expires January 15, 2013. This extension is necessary because the Coast Guard continues to analyze future reporting needs and evaluate possible changes in CDC reporting requirements. This extension of the suspension of the CDC reporting requirements in no way relieves towing vessel operators and fleeting area managers responsible for CDC barges in the RNA from their dangerous cargo or vessel arrival and movement reporting obligations currently in effect under other regulations or placed into effect under appropriate Coast Guard authority.

Documents indicated in this preamble as being available in the docket are part of docket USCG-2012-1074. To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type the docket number in the “SEARCH” box and click “SEARCH”. Click on Open Docket Folder on the line associated with this rulemaking. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

If you have questions about this temporary rule, call or email LT Jason Doherty, Coast Guard; telephone 504-671-2266, email: Jason.C.Doherty@uscg.mil. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-9826.

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(3)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it would be impracticable, unnecessary, and contrary to the public interest.

The contract for the CDC barge reporting system at the Inland River Vessel Movement Center (IRVMC) expired in January 2011. Due to the expiration of this contract, the Coast Guard would not be able to receive and process reports, therefore, in late December 2010, the Coast Guard decided to suspend the IRVMC reporting requirements for a two-year period. This suspension was published in the Federal Register at 76 FR 1360 (January 10, 2011), and expires on January 15, 2013.

At this time, the contract for the CDC barge reporting system has not been renewed, and the Coast Guard is still considering whether to enter into a new contract and lift the suspension, modify the reporting requirements in the RNA, or repeal the RNA completely. An extension of the stay is necessary while the Coast Guard continues to consider these options.

We believe prior notice and comment is unnecessary because we expect the affected public will have no objection to the extension of the temporary suspension of regulatory requirements. This suspension has been in place since January 2011, and the Coast Guard has received no public comment or objection regarding the suspension. Prior notice and comment is also contrary to the public interest because there is no public purpose served by continuing to require reports when there is no mechanism for receiving or processing those reports.

Under 5 U.S.C. 553(d)(1), a substantive rule that relieves a restriction may be made effective less than 30 days after publication. This temporary final rule, suspending the reporting requirements and thereby relieving the regulatory restriction on towing vessel operators and fleeting area managers provided by 33 CFR 165.830, takes effect at midnight on January 15, 2013, less than 30 days after publication.

B. Basis and Purpose

The legal basis for this rulemaking is the Coast Guard's authority to establish regulated navigation areas, under 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Public Law 107-295, 116 Stat. 2064; and Department of Homeland Security Delegation No. 0170.1. An RNA is a water area within a defined boundary for which regulations for vessels navigating within the area have been established, to control vessel traffic in a place determined to have hazardous conditions. 33 CFR 165.10; Commandant Instruction Manual M16704.3A, 1-6.

The purpose of this temporary final rule is to extend the previously published suspension of the reporting requirements for CDC barges imposed by the RNA created in 33 CFR 165.830. This temporary rule relieves the towing vessel operators and fleeting area managers responsible for CDC barges from the reporting requirements for a nine month period.

C. Discussion of the Final Rule

During the extended period for the suspension of reporting requirements, towing vessel operators and fleeting area managers responsible for CDC barges will be relieved of their obligation to report their CDCs under 33 CFR 165.830(d), (e), (f), (g), and (h). This suspension in no way relieves towing vessel operators and fleeting area managers responsible for CDC barges from their dangerous cargo or vessel arrival and movement reporting obligations currently in effect under other regulations or placed into effect under appropriate Coast Guard authority.

D. Regulatory Analyses

We developed this temporary final rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.

1. Regulatory Planning and Review

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under that Order. This rule is temporary and limited in nature by extending the previously published suspension of CDC barge reporting requirements for an additional nine-month period, creating no undue delay to vessel traffic in the regulated area.

2. Small Entities

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some which may be small entities: owners or operators of CDC barges intending to transit the Inland Rivers in the Eighth Coast Guard District during this two-year period. This rule will not have a significant economic impact on those entities or a substantial number of any small entities because this rule suspends reporting requirements for two years.

3. Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT, above.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

4. Collection of Information

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

5. Federalism

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

6. Protest Activities

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the “FOR FURTHER INFORMATION CONTACT” section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places, or vessels.

7. Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

8. Taking of Private Property

This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

11. Indian Tribal Governments

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

12. Energy Effects

This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.

13. Technical Standards

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

14. Environment

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule involves the nine-month extension of a previously published suspension of reporting requirements established for CDC barges transiting the inland rivers of the Eighth Coast Guard District. This rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction. Under figure 2-1, paragraph (34)(g), of the Instruction, an environmental analysis checklist and a categorical exclusion determination are not required for this rule.

Base (1% annual-chance) Flood Elevations (BFEs) and modified BFEs are made final for the communities listed below. The BFEs and modified BFEs are the basis for the floodplain management measures that each community is required either to adopt or to show evidence of being already in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).

DATES:

The date of issuance of the Flood Insurance Rate Map (FIRM) showing BFEs and modified BFEs for each community. This date may be obtained by contacting the office where the maps are available for inspection as indicated in the table below.

ADDRESSES:

The final BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below.

The Federal Emergency Management Agency (FEMA) makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Deputy Associate Administrator for Mitigation has resolved any appeals resulting from this notification.

This final rule is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.

Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community. The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown.

National Environmental Policy Act. This final rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared.

Regulatory Flexibility Act. As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 13132, Federalism. This final rule involves no policies that have federalism implications under Executive Order 13132.

Executive Order 12988, Civil Justice Reform. This final rule meets the applicable standards of Executive Order 12988.

§ 67.11 [Amended]2. The tables published under the authority of § 67.11 are amended as follows:Flooding source(s)Location of referenced elevation*Elevation in feet (NGVD)

+Elevation in feet

(NAVD)

#Depth in feet above ground

⁁ Elevation in meters (MSL)

modified

Communities

affected

Middlesex County, Connecticut (All Jurisdictions)Docket No.: FEMA-B-1232Long Island SoundApproximately 1,000 feet south of the intersection of U.S. Route 1 and Chapman Beach Drive+10Borough of Fenwick, Town of Clinton, Town of Old Saybrook, Town of Westbrook.Approximately 400 feet southeast of the intersection of Hartlands Drive and Sea Lane No. 1+24* National Geodetic Vertical Datum.+ North American Vertical Datum.# Depth in feet above ground.⁁ Mean Sea Level, rounded to the nearest 0.1 meter.ADDRESSESBorough of FenwickMaps are available for inspection at the Fenwick Borough Municipal Office, 580 Maple Avenue, Old Saybrook, CT 06475.Town of ClintonMaps are available for inspection at the Town Hall, 54 East Main Street, Clinton, CT 06413.Town of Old SaybrookMaps are available for inspection at the Town Hall, 302 Main Street, Old Saybrook, CT 06475.Town of Westbrook

Maps are available for inspection at the Town Hall, 866 Boston Post Road, Westbrook, CT 06498.

This is a summary of the Commission's Letter, DA 12-1976, released December 7, 2012. Both MPLC and CCT filed separately timely Petitions for Reconsideration, and amendments to their applications, File Nos. BNPED-20100224ABX and BNPED-20100226AGO, respectively, in response to the staff's July 27, 2012 decision. See 77 FR 50053, published August 20, 2012. The full text of this Commission decision is available for inspection and copying during normal business hours in the Commission's Reference Center 445 Twelfth Street, SW., Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street SW., Room CY-B402, Washington, DC 20054, telephone 1-800-378-3160 or www.BCPIWEB.com. The Commission will send a copy of the Letter in a report to be sent to Congress and the General Accounting Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

Although the Bureau now finds that the MPLC and CCT Applications both satisfy the reservation standard, MPLC and CCT remain tied with five points each. Thus, the Bureau refers the MPLC and CCT Applications to the Commission to administer the tie-breaker mechanisms and to determine the tentative selectee(s) for NCE Reserved Allotment Group No. 8.

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Temporary rule; quota transfer.

SUMMARY:

NMFS announces that the State of North Carolina is transferring a portion of its 2012 commercial summer flounder quota to the Commonwealth of Virginia, the State of North Carolina is transferring a portion of its 2012 commercial summer flounder quota to the State of Connecticut, and the Commonwealth of Massachusetts is transferring a portion of its 2012 commercial summer flounder quota to the State of Rhode Island. NMFS is adjusting the quotas and announcing the revised commercial quota for each state involved.

DATES:

Effective December 27, 2012, through December 31, 2012.

FOR FURTHER INFORMATION CONTACT:

Carly Bari, Fishery Management Specialist, 978-281-9224.

SUPPLEMENTARY INFORMATION:

Regulations governing the summer flounder fishery are in 50 CFR part 648, and require annual specification of a commercial quota that is apportioned among the coastal states from North Carolina through Maine. The process to set the annual commercial quota and the percent allocated to each state are described in § 648.102.

The final rule implementing Amendment 5 to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan, which was published on December 17, 1993 (58 FR 65936), provided a mechanism for summer flounder quota to be transferred from one state to another. Two or more states, under mutual agreement and with the concurrence of the Administrator, Northeast Region, NMFS (Regional Administrator), can transfer or combine summer flounder commercial quota under § 648.102(c)(2). The Regional Administrator is required to consider the criteria in § 648.102(c)(2)(i) to evaluate requests for quota transfers or combinations.

North Carolina has agreed to transfer 13,503 lb (6,124 kg) of its 2012 commercial quota to Virginia. This transfer was prompted by summer flounder landings of a number of North Carolina vessels that were granted safe harbor in Virginia due to mechanical failures and hazardous weather, between November 1, 2012, and November 30, 2012, thereby requiring a quota transfer to account for an increase in Virginia's landings that would have otherwise accrued against the North Carolina quota. North Carolina has agreed to transfer 20,000 lb (9,071 kg) of its 2012 commercial quota to Connecticut. This transfer was prompted by the diligent efforts of the state officials in Connecticut not to exceed the commercial summer flounder quota. Massachusetts has agreed to transfer 7,034 lb (3,190 kg) of its 2012 commercial quota to Rhode Island. This transfer was prompted by the diligent efforts of state officials in Rhode Island not to exceed the commercial summer flounder quota. The Regional Administrator has determined that the criteria set forth in § 648.102(c)(2)(i) have been met. The revised summer flounder quotas for calendar year 2012 are: North Carolina, 1,667,438 lb (765,409 kg); Virginia, 4,704,093 lb (2,133,741 kg); Connecticut, 322,490 lb (146,279 kg); Massachusetts, 888,902 lb (403,199 kg); and Rhode Island, 2,081,075 lb (943,959 kg).

Classification

This action is taken under 50 CFR part 648 and is exempt from review under Executive Order 12866.

This rule would increase the assessment rate established for the Fresh Pear Committee (Committee) for the 2012-2013 and subsequent fiscal periods from $0.366 to $0.449 per standard box or equivalent of summer/fall pears handled, and would decrease the assessment rate from $0.471 to $0.449 per standard box or equivalent of fresh winter pears handled. The Committee locally administers the marketing order which regulates the handling of fresh pears grown in Oregon and Washington. Assessments upon Oregon-Washington fresh pear handlers are used by the Committee to fund reasonable and necessary expenses of the program. The fiscal period begins July 1 and ends June 30. The assessment rate would remain in effect indefinitely unless modified, suspended, or terminated.

DATES:

Comments must be received by January 14, 2013.

ADDRESSES:

Interested persons are invited to submit written comments concerning this rule. Comments must be sent to the Docket Clerk, Marketing Order and Agreement Division, Fruit and Vegetable Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Fax: (202) 720-8938; or Internet: http://www.regulations.gov. Comments should reference the document number and the date and page number of this issue of the Federal Register and will be available for public inspection in the Office of the Docket Clerk during regular business hours, or can be viewed at: http://www.regulations.gov. All comments submitted in response to this rule will be included in the record and will be made available to the public. Please be advised that the identity of the individuals or entities submitting the comments will be made public on the Internet at the address provided above.

This rule is issued under Marketing Order No. 927, as amended (7 CFR part 927), regulating the handling of pears grown in Oregon and Washington, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, Oregon-Washington pear handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as proposed herein would be applicable to all assessable fresh pears beginning July 1, 2012, and continue until amended, suspended, or terminated.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This rule would increase the assessment rate established for the Fresh Pear Committee (Committee) for the 2012-2013 and subsequent fiscal periods from $0.366 to $0.449 per standard box or equivalent of summer/fall pears handled, and would decrease the assessment rate from $0.471 to $0.449 per standard box or equivalent of fresh winter pears handled. The standard box or equivalent assessment rate for “other” fresh pears would remain unchanged at $0.00.

The Oregon-Washington pear marketing order provides authority for the Committee, with USDA approval, to formulate an annual budget of expenses and to collect assessments from handlers to administer the fresh pear program. The members of the Committee are producers and handlers of Oregon-Washington fresh pears. They are familiar with the Committee's needs and with the costs for goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed at a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input.

For the 2011-2012 and subsequent fiscal periods, the Committee recommended, and USDA approved, the following three base rates of assessment: (a) $0.366 per standard box or equivalent for any or all varieties or subvarieties of fresh pears classified as “summer/fall”; (b) $0.471 per standard box or equivalent for any or all varieties or subvarieties of fresh pears classified as “winter”; and (c) $0.000 per standard box or equivalent for any or all varieties or subvarieties of fresh pears classified as “other”. These base rates of assessment would continue in effect from fiscal period to fiscal period unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other information available to USDA.

The Committee met on May 31, 2012, and unanimously recommended 2012-2013 expenditures of $9,166,744. To fund the 2012-2013 expenditures, the Committee also recommended an assessment rate of $0.449 per standard box or equivalent for both fresh summer/fall and winter pears.

In comparison, last year's budgeted expenditures were $9,301,960. The fresh summer/fall pear assessment rate of $0.449 is $0.083 higher than the rate currently in effect. The fresh winter pear assessment rate of $0.449 is $0.022 lower than the rate currently in effect. The Committee recommended increasing the promotion and paid advertising expenditures to market the larger 2012-2013 fresh summer/fall pear crop, estimated at four percent higher than 2011-2012 and the five-year average. Accordingly, the Committee recommended the higher fresh summer/fall pear assessment rate to fund the increased 2012-2013 promotion and paid advertising expenditures. The Committee estimates that the 2012-2013 fresh winter pear crop will be nine percent lower than 2011-2012. Consequently, the Committee recommended lower promotion and paid advertising expenditures for marketing the reduced fresh winter pear crop, resulting in a lower assessment rate for 2012-2013.

The major expenditures recommended by the Committee for the 2012-2013 fiscal period include $450,274 for contracted administration by Pear Bureau Northwest, $635,500 for production research and market development, $6,160,000 for promotion and paid advertising for winter pears, and $1,732,500 for promotion and paid advertising for summer/fall pears. In comparison, major expenses for the 2011-2012 fiscal period included $437,160 for contracted administration by Pear Bureau Northwest, $644,800 for production research and market development, $6,765,000 for promotion and paid advertising for winter pears, and $1,290,000 for promotion and paid advertising for summer/fall pears.

The Committee based its recommended assessment rate for fresh pears on the 2012-2013 summer/fall and winter pear crop estimates, the 2012-2013 program expenditure needs, and the current and projected size of its monetary reserve. Applying the $0.449 per standard box or equivalent assessment rate to the Committee's 4,500,000 standard box or equivalent fresh summer/fall pear crop estimate should provide $2,020,500 in assessment income. The quantity of assessable fresh winter pears for the 2012-2013 fiscal period is estimated at 16,000,000 standard boxes or equivalent and should provide $7,184,000 in assessment income. Thus, income derived from winter and summer/fall fresh pear handler assessments ($9,204,500) and interest and miscellaneous income ($20,000) would be adequate to cover the recommended $9,166,774 budget for 2012-2013. The Committee estimates that it will have a monetary reserve of $1,031,259 on June 30, 2012. During 2012-2013, the Committee estimates that $57,726 would be added to the reserve for an estimated reserve of $1,088,985 on June 30, 2013, which would be within the maximum permitted by the order of approximately one fiscal period's operational expenses (§ 927.42).

The proposed assessment rate would continue in effect indefinitely unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other available information.

Although this assessment rate would be in effect for an indefinite period, the Committee would continue to meet prior to or during each fiscal period to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Committee meetings are available from the Committee or USDA. Committee meetings are open to the public and interested persons may express their views at these meetings. USDA would evaluate Committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking would be undertaken as necessary. The Committee's 2012-2013 budget and those for subsequent fiscal periods would be reviewed and, as appropriate, approved by USDA.

Initial Regulatory Flexibility Analysis

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

There are approximately 1,580 producers of fresh pears in the regulated production area and approximately 38 handlers of fresh pears subject to regulation under the order. Small agricultural producers are defined by the Small Business Administration (SBA)(13 CFR 121.201) as those having annual receipts of less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $7,000,000.

According to the Noncitrus Fruits and Nuts 2011 Preliminary Summary issued in March 2012 by the National Agricultural Statistics Service, the total 2011 farm-gate value of all pears grown in Oregon and Washington is estimated at approximately $275,531,000. Based on the number of pear producers in the Oregon and Washington, the average gross revenue for each producer can be estimated at approximately $174,387. Furthermore, based on Committee records, the Committee has estimated that 56 percent of Oregon-Washington pear handlers currently ship less than $7,000,000 worth of fresh pears on an annual basis. From this information, it is concluded that the majority of producers and handlers of Oregon and Washington fresh pears may be classified as small entities.

This rule would increase the assessment rate established for the Committee and collected from handlers for the 2012-2013 and subsequent fiscal periods from $0.366 to $0.449 per standard box or equivalent of fresh summer/fall pears handled, and would decrease the assessment rate from $0.471 to $0.449 per standard box or equivalent of fresh winter pears handled. The Committee unanimously recommended 2012-2013 expenditures of $9,166,774, and an assessment rate of $0.449 per standard box or equivalent of fresh summer/fall and winter pears handled. The proposed assessment rate of $0.449 is $0.083 higher than the 2011-2012 assessment rate for summer/fall pears, and $0.022 lower than the 2011-2012 assessment rate for winter pears. The Committee recommended increasing the promotion and paid advertising expenditures to market the larger 2012-2013 fresh summer/fall pear crop, estimated at four percent higher than 2011-2012 and the five-year average. Accordingly, the Committee recommended the higher fresh summer/fall pear assessment rate to fund the increased 2012-2013 promotion and paid advertising expenditures. The Committee estimates that the 2012-2013 fresh winter pear crop will be nine percent lower than 2011-2012. Consequently, the Committee recommended lower promotion and paid advertising expenditures for marketing the reduced fresh winter pear crop, resulting in a lower assessment rate for 2012-2013.

The quantity of assessable fresh summer/fall pears for the 2012-2013 fiscal period is estimated at 4,500,000 standard boxes or equivalent. Thus, the $0.449 rate should provide $2,020,500 in assessment income. Applying the $0.449 per standard box or equivalent assessment rate to the Committee's 16,000,000 standard box or equivalent fresh winter pear crop estimate should provide $7,184,000 in assessment income. Income derived from winter and summer/fall fresh pear handler assessments ($9,204,500) and interest and miscellaneous income ($20,000) would be adequate to cover the budgeted expenses.

The major expenditures recommended by the Committee for the 2012-2013 fiscal period include $450,274 for contracted administration by Pear Bureau Northwest, $635,500 for production research and market development, $6,160,000 for promotion and paid advertising for winter pears, and $1,732,500 for promotion and paid advertising for summer/fall pears. Budgeted expenses for these items in 2011-2012 were $437,160, $644,800, $6,765,000, and $1,290,000, respectively.

The Committee discussed alternatives to this rule. Leaving the assessment rate at the current level for summer/fall and winter pears was initially considered, but not recommended. Although considered, the Committee believes that the current assessment level for fresh summer/fall pears would not generate the funds necessary for the promotion and marketing of the larger fresh summer/fall pear crop. As a consequence, increasing it to the level recommended herein was determined as the best alternative. Similarly, the Committee discussed alternatives for the winter pear assessment rate, but concluded that the recommended lower assessment rate should generate enough funds for promotion and marketing of the smaller fresh winter pear crop.

A review of historical information and preliminary information pertaining to the upcoming fiscal period indicates that the Oregon-Washington producer price for the 2012-2013 fiscal period could average $9 per standard box or equivalent of pears. Therefore, the estimated assessment revenue for the 2012-2013 fiscal period as a percentage of total producer revenue is 4.99 percent.

This action would modify the assessment obligation imposed on handlers. While the increase in the summer/fall pear assessment rate may impose some additional costs on handlers, the costs are minimal and uniform on all handlers. Some of the additional costs may be passed on to producers. These costs would be offset by the benefits derived by the operation of the marketing order. On the other hand, decreasing the winter pear assessment rate would reduce the burden on handlers, and may reduce the burden on producers.

In addition, the Committee's meeting was widely publicized throughout the Oregon-Washington pear industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the May 31, 2012, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Finally, interested persons are invited to submit comments on this proposed rule, including the regulatory and informational impacts of this action on small businesses.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0189, Generic Fruit Crops. No changes in those requirements as a result of this action are anticipated. Should any changes become necessary, they would be submitted to OMB for approval.

This proposed rule would impose no additional reporting or recordkeeping requirements on either small or large Oregon-Washington fresh pear handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: www.ams.usda.gov/MarketingOrdersSmallBusinessGuide. Any questions about the compliance guide should be sent to Laurel May at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

A 10-day comment period is provided to allow interested persons to respond to this proposed rule. Ten days is deemed appropriate because: (1) The 2012-2013 fiscal period begins on July 1, 2012, and the marketing order requires that the rate of assessment for each fiscal period apply to all assessable pears handled during such fiscal period; (2) the Committee needs to have sufficient funds to pay its expenses which are incurred on a continuous basis; (3) the proposed rule would decrease the assessment rate for assessable fresh winter pears; and (4) handlers are aware of this action which was unanimously recommended by the Committee at a public meeting and is similar to other assessment rate actions issued in past years.

Instructions: Direct your comments to Docket ID No. EPA-R08-OAR-2012-0958. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or email. The www.regulations.gov Web site is an anonymous access system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA, without going through www.regulations.gov your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. For additional instructions on submitting comments, go to Section I. General Information of the SUPPLEMENTARY INFORMATION section of this document.

Docket: All documents in the docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy at the Air Program, Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop St., Denver, Colorado 80202-1129. EPA requests that if at all possible, you contact the individual listed in the FOR FURTHER INFORMATION CONTACT section to view the hard copy of the docket. You may view the hard copy of the docket Monday through Friday, 8:00 a.m. to 4:00 p.m., excluding Federal holidays.

Table of ContentsI. General InformationII. Background of State SubmittalsIII. EPA Analysis of the Maintenance Plan for the 1997 8-Hour Ozone Standard for Salt Lake County and Davis CountyIV. EPA Analysis of the Associated Rule RevisionsV. Proposed ActionVI. Statutory and Executive Order ReviewsDefinitions

For the purpose of this document, we are giving meaning to certain words as follows:

(i) The words or initials Act or CAA mean or refer to the Clean Air Act, unless the context indicates otherwise.

(ii) The words EPA, we,us or our mean or refer to the United States Environmental Protection Agency.

(iii) The initials SIP mean or refer to State Implementation Plan.

(iv) The words State or Utah mean the State of Utah, unless the context indicates otherwise.

I. General InformationWhat should I consider as I prepare my comments for EPA?

1. Submitting CBI. Do not submit this information to EPA through www.regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

g. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

h. Make sure to submit your comments by the comment period deadline identified.

II. Background of State SubmittalsA. Regulatory Context

Under the Clean Air Act (CAA) enacted in 1970, EPA established national ambient air quality standards (NAAQS) for certain pervasive air pollutants, such as photochemical oxidant, carbon monoxide, and particulate matter. The NAAQS represent concentration levels below which public health and welfare are protected. The 1970 Act also required states to adopt and submit State Implementation Plans (SIPs) to implement, maintain, and enforce the NAAQS.

From time-to-time, the CAA requires SIP revisions to account for new or amended NAAQS or to meet other changed circumstances. The CAA was significantly amended in 1977, and under the 1977 Amendments, EPA promulgated attainment status designations for all areas of the country with respect to the NAAQS.

The CAA requires EPA to periodically review and revise the NAAQS, and in 1979, EPA established a new NAAQS of 0.12 ppm for ozone, averaged over 1 hour. This new NAAQS replaced the oxidant standard of 0.08 ppm. See 44 FR 8202 (February 8, 1979). Areas designated nonattainment for oxidant were considered to be nonattainment for ozone as well. Part D of CAA Title I requires special measures for areas designated nonattainment. In 1984, EPA approved Utah's SIP for the 1-hour ozone standard for the Salt Lake County and Davis County nonattainment area (49 FR 32575).

Congress significantly amended the CAA again in 1990. Under the 1990 Amendments, each area of the country that was designated nonattainment for the 1-hour ozone NAAQS, including Salt Lake County and Davis County, was classified by operation of law as marginal, moderate, serious, severe, or extreme nonattainment depending on the severity of the area's air quality problem. The ozone nonattainment designation for Salt Lake County and Davis County continued by operation of law according to section 107(d)(1)(C)(i) of the CAA, as amended in 1990. Furthermore, the area was classified by operation of law as moderate for ozone under CAA section 181(a)(1).

Under CAA section 175A, states may request redesignation of a nonattainment area to attainment if monitoring data showed that the area has met the NAAQS and if the area meets certain other requirements. On July 18, 1995, both Salt Lake and Davis Counties were found to be attaining the 1-hour ozone standard (60 FR 36723). On July 17, 1997, EPA approved the State's request to redesignate Salt Lake and Davis Counties to attainment for the 1-hour ozone standard. As part of that action, EPA approved the State's 1-hour ozone maintenance plan (62 FR 38213).

On July 18, 1997, EPA promulgated an 8-hour ozone NAAQS of 0.08 ppm (62 FR 38894). This standard was intended to replace the 1-hour ozone standard. On April 30, 2004, EPA designated areas of the country for the 1997 8-hour ozone standard (69 FR 23857). EPA designated all areas in Utah, including Salt Lake County and Davis County, as unclassifiable/attainment for the 1997 8-hour ozone NAAQS (69 FR 23940).

Also, on April 30, 2004, EPA revoked the pre-existing 1-hour NAAQS (69 FR 23951, 23996; 40 CFR 50.9(b)). As part of this rulemaking, EPA established certain requirements to prevent backsliding in those areas that were designated as nonattainment for the 1-hour ozone standard at the time of designation for the 8-hour ozone standard, or that were redesignated to “attainment” but subject to a maintenance plan, as is the case for Salt Lake County and Davis County. These requirements are codified at 40 CFR 51.905.

In the case of Utah, one of these requirements was to submit a maintenance plan for the 1997 8-hour ozone standard. On March 22, 2007, the Governor of Utah submitted a maintenance plan for the 1997 8-hour ozone standard for Salt Lake County and Davis County, and associated rule revisions. In this notice, EPA is proposing to act on this March 22, 2007 maintenance plan and rule revisions.

In 2008, EPA promulgated a lower 8-hour ozone standard—0.075 ppm. 73 FR 16436. The 2008 ozone standard retains the same general form and averaging time as the 0.08 ppm standard set in 1997. Effective July 20, 2012, Salt Lake County and Davis County were designated Unclassifiable/Attainment for this lower standard. 77 FR 30088, 30151.

B. Ambient Ozone Conditions

The 1997 ozone NAAQS is attained when the three-year average of the annual fourth-highest daily maximum 8-hour average ambient ozone concentration (also referred to as the “design value”) is less than or equal to 0.08 ppm at all monitoring sites within an air quality planning area. Forty CFR part 50, Appendix I, section 2.3, directs that the third decimal place of the computed three-year average be rounded; values equal to or greater than 0.005 are rounded up. Thus, under our regulations, a computed three-year ozone concentration of 0.085 ppm is the smallest value that is considered to be greater than 0.08 ppm and, thus, a violation of the standard.

A review of the data gathered at the ozone monitoring sites in Salt Lake County and Davis County from 2000-2011 1 shows the area has been attaining the 8-hour ozone NAAQS except for the 2005-2007 period, which had a design value of 0.085 ppm. As noted above, EPA designated Salt Lake County and Davis County unclassifiable/attainment for the lower 2008 ozone standard (0.075 ppm) based on monitored values for 2008-2010. The following table shows design values for each year from 2000 through 2011:

As noted above, 40 CFR 51.905 requires a maintenance plan for the 1997 8-hour ozone standard, pursuant to section 110(a)(1) of the CAA. In the case of areas like Salt Lake County and Davis County, that have an approved maintenance plan for the 1-hour ozone standard and are unclassifiable/attainment for the 8-hour standard, 40 CFR 51.905(a)(4)(ii) specifies that the maintenance plan must provide for continued maintenance of the 8-hour standard for 10 years following designation—i.e., until 2014—and must include contingency measures. In May 20, 2005 guidance entitled “Maintenance Plan Guidance Document for Certain 8-hour Ozone Areas Under Section 110(a)(1) of the Clean Air Act” (“2005 guidance”), EPA provided its interpretations of the components that 40 CFR 51.905 maintenance plans should include. These components are: (1) An attainment inventory, (2) a maintenance demonstration, (3) ambient air quality monitoring, (4) a contingency plan, and (5) verification of continued attainment.

2 These two monitors were shut down in Sept. 2007.

In addition, 40 CFR 51.905(a)(4)(i) restricts states from removing certain “applicable requirements,” as defined in 40 CFR 51.900(f), from the SIP. States may shift applicable requirements to contingency measures if such a shift is consistent with CAA sections 110(l) and 193. As a general proposition, EPA may not approve a SIP revision that is inconsistent with CAA section 110(l) or CAA section 193.

Below, we evaluate whether the Utah maintenance plan is consistent with the relevant statutory and regulatory requirements, as we have interpreted them.

A. Attainment Emission Inventory

As recommended by EPA, the State used 2002 as the year for the maintenance plan's attainment inventory, and the inventory reflects typical summer day emissions of volatile organic compounds (VOCs) and oxides of nitrogen (NOX). The emission inventory is divided into four major source categories: point sources, area sources, mobile sources, and naturally occurring biogenic sources. Mobile sources are further divided into on-road and non-road categories. The following tables present the 2002 attainment inventory, as well as the State's projected inventories through 2014.

The attainment inventory was prepared in accordance with EPA guidance and we find that it accurately portrays typical summer day emissions during the 2002 ozone season (June-August).

B. Maintenance Demonstration

Under EPA's interpretation of the CAA and its regulations, maintenance of an ozone standard generally may be demonstrated through modeling or through an emissions inventory approach. Utah chose the latter approach, which involves a showing that future emissions of ozone precursors will not exceed the level of such precursors in the attainment year inventory.

The maintenance plan's projections, as reflected in Tables 2 and 3 above, show that future emissions of VOCs and NOX will not exceed the 2002 inventory values. However, primarily due to high monitored ambient ozone concentrations in the 2005 ozone season, the area recorded a violation of the 1997 8-hour ozone standard for the 2005-2007 seasons. This violation casts doubt on the use of the 2002 emissions inventories as representative of the levels of emissions that are consistent with maintaining the standard. However, the circumstances presented here provide countervailing considerations:

1. Since the time of the area's designation to attainment in 2004, the only monitored violation occurred during 2005-2007. As stated above, the 1997 8-hour ozone standard is attained at a design value of 0.084, and the design value for 2005-2007 was 0.085 ppm—the lowest value that can represent a violation.

2. In 2005, the area monitored significantly higher 4th high maximum values than it had monitored in the previous four years and than it has monitored since.

3. In 2006-2008, the area immediately returned to attainment and has continued to attain the standard. Complete quality-assured data for 2007-2009, 2008-2010, 2009-2011, and preliminary data for 2012, show that the area has continuously maintained the standard.

4. Under the applicable regulatory requirement, 40 CFR 51.905(a)(4), the State must demonstrate maintenance for ten years after designation, or until 2014.

5. In evaluating the potential for the area, given its continued maintenance during and subsequent to 2008, EPA takes into consideration the fact that, in order for the area to violate the standard in 2013-2014, the area would have to experience significantly higher 4th high maximums than it experienced in 2005. We find this prospect to be highly unlikely, particularly given the State's projected emissions trends, as reflected in Tables 2 and 3 above.

6. Mobile source emissions account for a very large portion of the overall emissions inventory, and federal motor vehicle control standards, combined with fleet turnover, will continue to reduce relevant emissions through 2014.

Based on this unique combination of factors, we are proposing to approve the maintenance demonstration. However, we are also proposing disapproval in the alternative should comments convince us that approval is not consistent with the CAA.

C. Ambient Air Quality Monitoring/Verification of Continued Attainment

EPA's 2005 guidance indicates that, “The State should continue to operate air quality monitors in accordance with 40 CFR 58 to verify maintenance of the 8-hour ozone standard in the area.” The maintenance plan (section 4) describes the ozone monitoring network, presents monitoring data, and includes the State's commitment to continue to operate and maintain an adequate monitoring network in accordance with 40 CFR 58. For the period 1999 through 2005, there were six ozone monitors in Salt Lake and Davis Counties. The plan indicates that the State will continue to conduct annual reviews of the network and gain EPA approval before making any changes to the existing network.

Regarding verification of continued attainment, our guidance indicates that the plan should indicate how the State will track the progress of the maintenance plan. One option mentioned is to periodically update the emission inventory. In the maintenance plan, the State includes a section 7 entitled, “Verification of Continued Ozone Maintenance.” In it, the State commits to update the VOC and NOX emission inventories for Salt Lake and Davis Counties at least once every three years, and to compare the updated inventories to the plan's projections to verify that emissions are within acceptable limits to maintain the standard. EPA is proposing to approve this section of the maintenance plan.

D. Contingency Measures

EPA's 2005 guidance states that the contingency plan should include measures to ensure that a violation of the 8-hour ozone NAAQS is promptly corrected. EPA's interpretation of the section 51.905 contingency measures requirement is consistent with its interpretation of the CAA section 175A contingency plan requirement. Thus, the plan must include the State's enforceable commitment to adopt and implement the contingency measures in a timely fashion once they're triggered. The plan must identify the measures to be adopted, a schedule and procedure for adoption and implementation, and a specific time limit for action by the State.

A pre-adopted contingency measure is not required; rather, the plan may include a list of potential measures from which the State could choose should a violation occur. The purpose of the contingency measures is to achieve VOC and/or NOX emission reductions to correct a violation.

The State's maintenance plan provides that the contingency trigger date is the date that certified data show that a monitored violation of the 1997 ozone standard has occurred. The maintenance plan describes the State's timeline to implement contingency measures. Within 60 days of the contingency trigger date, the Utah Division of Air Quality will begin evaluation of potential contingency measures. Within 180 days of the contingency trigger date, the Division of Air Quality will present the recommended contingency measures to the Utah Air Quality Board. The Air Quality Board will then hold public hearings to consider the recommended contingency measures along with any other contingency measures the Air Quality Board deems appropriate. The plan indicates that the necessary contingency measures will be adopted and implemented within 24 months of the contingency trigger date.

Possible contingency measures include:

1. Alert Day Enhancements—A public outreach campaign to educate individuals of smart choices, such as discouraging refueling vehicles or mowing lawns during peak ozone periods.

2. Reduction of Truck Stop Idling—The plan indicates that Utah could adopt a rule limiting vehicle idling time while vehicles are not actually moving.

3. Heavy Equipment Emission Control Program—According to the plan, this “could include incentives to encourage after-market retrofit of heavy-duty diesel construction equipment and increased use of compressed natural gas-fueled school and [Utah Transit Authority] buses.”

4. Reduce Emissions of VOCs—Voluntary commitments or regulatory measures to reduce VOC emissions from major sources.

5. Identification of High-Polluting Vehicles—Use of remote sensing technology to identify smoking or high-polluting vehicles and provide incentives for repair of these vehicles.

6. Establish an Offset Ratio for NOX—Lower the threshold at which offsets are required for new NOX sources.

On November 2, 2006, during the State's public comment period on its draft maintenance plan, we provided comments to the State on the proposed contingency measure portion of the plan. We noted that several of the contingency measures included on the State's list of potential measures were voluntary measures. We advised the State that voluntary measures do not function or qualify as contingency measures. The State disagreed and retained the voluntary measures in its list of contingency measures.

In today's notice, we are proposing to approve contingency measure numbers 2 and 7 on the list above, because these measures would impose regulatory requirements. We are proposing to approve measure number 4 to the extent it prescribes measures that are enforceable and regulatory, as opposed to voluntary measures. We also are proposing to approve measure number 8, with the understanding that any contingency measure under this category must be enforceable, not voluntary, to be considered valid under our proposed approval.

We are proposing to disapprove those measures on the list above that are voluntary: Measure numbers 1 and 2, the portion of measure number 4 that includes voluntary measures, and measure number 5. While we have not required that potential contingency measures be effective without further action by the state, we interpret the CAA as requiring measures that will be enforceable. Voluntary measures may not be widely implemented and, thus, cannot be relied on to ensure prompt emission reductions to correct a violation. We also are proposing to disapprove measure number 6 on the list of contingency measures because it will achieve emissions reductions only if new source construction occurs. Thus, it is not a measure that will ensure prompt correction of a violation.

Because we consider those regulatory contingency measures that we are proposing to approve to be sufficient to satisfy the contingency measure requirements for this maintenance plan, our disapproval of the other contingency measures would not trigger a deadline for EPA to promulgate a federal implementation plan under CAA section 110(c).

E. Other Aspects of the Maintenance Plan1. VOC Reasonably Available Control Technology (RACT)

40 CFR 51.904(a)(4) provides that applicable requirements in a 1-hour ozone plan, as defined in 40 CFR 51.900(f), may not be removed from the SIP. It allows a state to move such requirements to contingency measures, but only if the requirements of CAA sections 110(l) and 193 are met.

In the 8-hour ozone maintenance plan, the State indicates that all RACT requirements from the 1-hour ozone SIP will remain in place. However, later in the 8-hour ozone maintenance plan, Utah proposes to remove the approval orders for Hill Air Force Base from the SIP. When we approved Utah's 1-hour maintenance plan and redesignation request, we approved and incorporated these orders to satisfy applicable CAA RACT requirements. 62 FR 28399; 62 FR 38214-38215. In place of these approval orders, the State claims that Maximum Achievable Control Technology (MACT) requirements, New Source Performance Standards (NSPS), and generic State rules will provide a more stringent substitute to “regulate over eighty-six percent of the total VOC emissions originating from Hill Air Force Base.” According to the State, the “remaining fourteen percent” will be regulated by “the forthcoming Military MACT.” The State did not propose to move the approval orders to the contingency measures.

We find that the State's generic statements regarding equivalency, without a specific, comparative analysis of the units and pollutants involved, are not sufficient to satisfy the requirements of CAA sections 110(l) and 193. We are unable to conclude that the various MACT, NSPS, and generic State rules are as or more stringent than the approval orders. Furthermore, we are unclear what the State is referring to when it mentions a forthcoming Military MACT. Thus, we are proposing to disapprove the State's proposal to remove the approval orders for Hill Air Force Base from the SIP.

Because these approval orders would remain a part of the federally enforceable SIP should we finalize our proposed disapproval, our disapproval of the State's proposal to remove the approval orders would not trigger a FIP deadline.

The State has also submitted revisions to the following generic VOC RACT rules that it relied on in the 1-hour maintenance plan:

These rules are further discussed in Section IV, “EPA Analysis of the Associated Rule Revisions,” of this notice.

2. NOX RACT

For the PacifiCorp Gadsby Power Plant, the State asserts in the 8-hour maintenance plan that “current” NOX emission limitations in Section IX, Part H of the SIP are equivalent to the NOX emission limitations that the State approved as RACT in conjunction with the 1-hour ozone maintenance plan. It appears that Utah is using the word “current” to refer to the emission limit contained in Utah's 2005 PM10 maintenance plan. We think this limit is a daily NOX limit for the entire plant of 6.57 tons per day. However, Utah does not specify this in the 8-hour ozone maintenance plan and does not explain how this limit is equivalent to the NOX RACT limits for boilers 1, 2, and 3 that EPA approved with the 1-hour ozone maintenance plan in 1997. See 62 FR 28403; 62 FR 38215-38216.3 Furthermore, after we proposed to disapprove Utah's 2005 PM10 maintenance plan, the Governor withdrew it. Thus, the version of Section IX, Part H that the State describes in the 8-hour ozone maintenance plan is not currently before us for consideration. As a result of these issues, we are proposing to disapprove the State's proposal to remove the NOX RACT limits that we approved for boilers 1, 2, and 3 in 1997.

3 In our 1997 action, we incorporated by reference Utah's February 3, 1994 approval order for PacifiCorp Gadsby that specified hourly NOX limits of 179, 204, and 203 pounds per hour for boilers 1, 2, and 3 individually.

Because these NOX RACT limits would remain a part of the federally enforceable SIP, should we finalize our proposed disapproval, our disapproval of the State's proposal to remove the NOX RACT limits would not trigger a FIP deadline.

3. Employer-Based Trip Reduction Program

The 8-hour maintenance plan states that the employer-based trip reduction program, contained in Utah rule R307-320, is included in the 1-hour maintenance plan, but that no reduction credit is claimed for it. The maintenance plan indicates that the program is retained as a control measure in the 8-hour plan.

We note that we did not approve R307-320 when we acted on the 1-hour maintenance plan and that it is not currently part of the EPA-approved SIP. We also note that the State claimed no reduction credit for the employer-based trip reduction program in the 1-hour maintenance plan. Because the program only applies to governmental employers and does not apply to private employers of the same size, the program is inconsistent with CAA section 118. Specifically, Congress has only waived the sovereign immunity of the federal government for purposes of control and abatement of air pollution to the extent that nongovernmental entities are regulated. Thus, we are proposing to disapprove section 5.g of the maintenance plan and R307-320.

Our disapproval of section 5.g of the maintenance plan and R307-320 would not trigger a FIP deadline because an employer-based trip reduction program is not required.

IV. EPA Analysis of the Associated Rule Revisions

Along with the maintenance plan for the 1997 8-hour ozone standard for Salt Lake and Davis Counties, the State also submitted associated rule revisions. Some of these are relied on in the maintenance plan to demonstrate maintenance of the 1997 8-hour ozone standard. We evaluate each of these rules below.

A. R307-101-2. “Definitions.” The revisions to this rule that the State submitted with the maintenance plan were effective March 9, 2007. However, on April 17, 2008, the State submitted further revisions to the rule that were effective on February 8, 2008. Our review indicates that the 2008 version of the rule superseded the 2007 version. We approved the 2008 version of the rule on September 2, 2008 and incorporated it by reference into the Code of Federal Regulations. See 73 FR 51222. Thus, in this proposed action we are not acting on the 2007 version of R307-101-2.

B. R307-110-13. “Section IX, Control Measures for Area and Point Sources, Part D, Ozone.” This rule merely incorporates the maintenance plan into Utah's rules. To the extent we are proposing to approve the maintenance plan, we are proposing to approve this rule. We do not intend to approve the incorporation of the parts of the maintenance plan that we are proposing to disapprove.

C. R307-320. “Ozone Maintenance Areas and Ogden City: Employer-Based Trip Reduction Program.” As noted above, the program only applies to governmental employers and does not apply to private employers of the same size. Thus, the program is inconsistent with CAA section 118, and we are proposing to disapprove the rule.

D. R307-325. “Ozone Nonattainment and Maintenance Areas: General Requirements.” Utah revised this rule to clarify the purpose, applicability, and compliance schedule. Utah moved language regarding alternate methods of control from this rule to individual VOC RACT rules, as described in section IV.E below. Additionally, Utah deleted language because it is not needed in this rule or any other rule, and Utah made minor grammatical corrections. Utah also made administrative revisions to the rule's title to replace the reference to “Salt Lake and Davis Counties” with a reference to “Ozone Nonattainment and Maintenance Area.” Per section 110(l) of the CAA, EPA, in November 2, 2006 comments to Utah, requested that Utah demonstrate that deleting the generic RACT requirement from R307-325 would not interfere with attainment, maintenance, or any other requirement of the CAA. In our November 2, 2006 comments, we clarified that this demonstration could consist of a State certification that all sources potentially subject to the rule were controlled through adoption of specific RACT provisions. The State provided that certification in its response to comments (contained in the docket for this action), and further stated that any sources not controlled through source-specific RACT determinations would be addressed by the NOX RACT waiver that EPA approved in 1997 (See 62 FR 38215). Therefore, we are proposing to approve these changes.

E. Alternate Methods of Control (AMOC) and EPA's Concurrence Requirement

The State is proposing revisions to R307-326, R307-327, R307-328, R307-335, R307-340, and R307-342, which are addressed individually below. For each of these rules, the State wishes to include AMOC language that was previously included in R307-325. That language states:

“Any person may apply to the executive secretary for approval of an alternate test method, an alternate method of control, an alternate compliance period, an alternate emission limit, or an alternate monitoring schedule. The application must include a demonstration that the proposed alternate produces an equal or greater air quality benefit than that required by [this rule], or that the alternate test method is equivalent to that required by these rules. The executive secretary shall obtain concurrence from EPA when approving an alternate test method, an alternate method of control, an alternate compliance period, an alternate emission limit, or an alternate monitoring schedule.”

The Utah Department of Environmental Quality (DEQ) has confirmed that this regulatory language requiring concurrence from EPA on any AMOC applies to all the provisions in these rules that allow for DEQ to alter the compliance requirements of the rule. EPA would like to clarify its position on what is required for EPA to concur on such changes.

Section 110(i) of the CAA specifically precludes states from changing the requirements of the SIP that apply to any stationary source except through SIP revisions approved by EPA. SIP revisions will be approved by EPA only if they meet all requirements of section 110 of the Act and the implementing regulations at 40 CFR Part 51. See, e.g., CAA section 110(l); 40 CFR 51.104. Section 51.104(d) specifically states that in order for a variance to be considered for approval as a SIP revision, the state must submit it in accordance with the requirements of 40 CFR 51.104, which includes the public notice, comment and hearing provisions of 40 CFR 51.102.

Furthermore, the AMOC provision does not contain specific, objective, and replicable criteria for determining if such “alternate methods” are in fact at least as effective as the required methods in terms of emission rates and ambient impacts. For purposes of meeting CAA requirements, EPA concurrence in the form of a SIP approval is required for any of the alternate compliance provisions throughout R307-326, R307-327, R307-328, R307-335, R307-340, and R307-342. This includes approval of an alternate method of control, an alternate test method, an alternate compliance period, an alternate emission limit, a variance, or an alternate monitoring schedule. The public notice process of a SIP approval will allow EPA and the public to determine whether any new compliance terms approved by the executive secretary continue to assure maintenance of the ambient standard.4

4 By adopting a generic SIP provision consistent with the EPA guidance known as White Paper Number 2, a state may be able to streamline EPA's SIP approval process for an AMOC. White Paper Number 2, Attachment B, envisions the use of the Title V permit process to establish alternative requirements.

F. R307-326. “Ozone Nonattainment and Maintenance Areas: Control of Hydrocarbon Emissions in Petroleum Refineries.” Utah made additions and modifications to clarify the purpose, applicability, definitions, monitoring requirements, alternative method of control provisions, and compliance schedule. Additionally, Utah deleted language because it is not needed in this rule or any other rule. Utah has made administrative revisions to the rule's title where the reference to Salt Lake and Davis Counties was simply replaced with “ozone maintenance area.” EPA is proposing to approve these changes. However, for purposes of clarification, EPA interprets the following provisions in R307-326 (in addition to any other request for an AMOC that may arise outside of these provisions) as being subject to the requirement in R307-326-10(1) for EPA concurrence, and thus subject to EPA's general statement about alternate methods of control, above:

1. R307-326-4(3).

2. R307-326-6(3).

3. In R307-326-7, the provision that reads, “or controlled by other methods, provided the design and effectiveness of such methods are documented, submitted to, and approved by the executive secretary.”

4. R307-326-9(5)(a).

5. In R307-326-10(3), the provision that reads, “or approved by the executive secretary.” In addition, we interpret R307-326-10(2), which requires an owner or operator to repair a malfunctioning control device within 15 days or other period approved by the executive secretary, as not excusing any period of violation of the control requirements in R307-326.

G. R307-327. “Ozone Nonattainment and Maintenance Areas: Petroleum Liquid Storage.” Utah made additions and modifications to clarify the purpose, applicability, general requirements, alternate method of control provisions, and compliance schedule. Additionally, Utah deleted language because it is not needed in this rule or any other rule. Utah has made administrative revisions to the rule's title where the reference to Salt Lake and Davis Counties was simply replaced with “ozone maintenance area.” EPA is proposing to approve these changes. However, for purposes of clarification, EPA interprets the following provisions in R307-327 (in addition to any other request for an AMOC that may arise outside of these provisions) as being subject to the requirement in R307-327-7(1) for EPA concurrence, and thus subject to EPA's general statement about alternate methods of control, above:

1. In R307-327-4(1), the provision that reads, “or alternative equivalent controls, provided the design and effectiveness of such equipment is documented and submitted to and approved by the executive secretary.”

2. R307-327-6(3)(d).

3. In R307-327-7(3), the provision that reads, “or approved by the executive secretary.” In addition, we interpret R307-327-7(2), which requires an owner or operator to repair a malfunctioning control device within 15 days or other period approved by the executive secretary, as not excusing any period of violation of the control requirements in R307-327.

H. R307-328. “Ozone Nonattainment and Maintenance Areas and Utah and Weber Counties: Gasoline Transfer and Storage.” Utah made additions and modifications to clarify the purpose, applicability, definitions, transport vehicle provisions, alternate method of control provisions, and compliance schedule. Additionally, Utah deleted language because it is not needed in this rule or any other rule. Utah has made administrative revisions to the rule's title where the reference to Salt Lake and Davis Counties was simply replaced with “ozone maintenance area.” EPA is proposing to approve these changes. However, for purposes of clarification, EPA interprets the following provisions in R307-328 (in addition to any other request for an AMOC that may arise outside of these provisions) as being subject to the requirement in R307-328-8(1) for EPA concurrence, and thus subject to EPA's general statement about alternate methods of control, above:

1. In R307-328-4(6), the provision that reads, “or alternate equivalent methods * * *. The design effectiveness of such equipment and the operating procedures must be documented and submitted to and approved by the executive secretary.”

2. In R307-328-4(9), the provision that reads, “The frequency of tests may be altered by the executive secretary upon submittal of documentation which would justify a change.”

3. In R307-328-5(1)(c), the provision that reads, “or their equivalent which have been approved by the executive secretary.”

4. In R307-328-6(4), the provision that reads, “or equivalent equipment provided the design and effectiveness of such equipment are documented and submitted to and approved by the executive secretary.”

5. In R307-328-8(3), the provision that reads, “or approved by the executive secretary.”

In addition, we interpret R307-328-8(2), which requires an owner or operator to repair a malfunctioning control device within 15 days or other period approved by the executive secretary, as not excusing any period of violation of the control requirements in R307-328.

I. R307-335. “Ozone Nonattainment and Maintenance Areas: Degreasing and Solvent Cleaning Operations.” Utah made additions and modifications to clarify the purpose, applicability, definitions, alternate method of control provisions, and compliance schedule. Additionally, Utah deleted language because it is not needed in this rule or any other rule. Utah has made administrative revisions to the rule's title where the reference to Salt Lake and Davis Counties was simply replaced with “ozone maintenance area.” EPA is proposing to approve these changes. However, for purposes of clarification, EPA interprets the following provisions in R307-335 (in addition to any other request for an AMOC that may arise outside of these provisions) as being subject to the requirement in R307-335-7(1) for EPA concurrence, and thus subject to EPA's general statement about alternate methods of control, above:

1. In R307-335-4(3), the provision that reads, “or by an alternate means approved by the executive secretary.”

2. In R307-335-7(3), the provision that reads, “or approved by the executive secretary.”

In addition, we interpret R307-335-8(2), which requires an owner or operator to repair a malfunctioning control device within 15 days or other period approved by the executive secretary, as not excusing any period of violation of the control requirements in R307-335.

J. R307-340. “Ozone Nonattainment and Maintenance Areas: Surface Coating Processes.” Utah made additions and modifications to clarify the purpose, applicability, definitions, general provisions for volatile organic compounds, alternate method of control provisions, and compliance schedule. Additionally, Utah deleted language because it is not needed in this rule or any other rule. Utah has made administrative revisions to the rule's title where the reference to Salt Lake and Davis Counties was simply replaced with “ozone maintenance area.” EPA is proposing to approve these changes. However, for purposes of clarification, EPA interprets the following provisions in R307-340 (in addition to any other request for an AMOC that may arise outside of these provisions) as being subject to the requirement in R307-340-16(1) for EPA concurrence, and thus subject to EPA's general statement about alternate methods of control, above:

1. In R307-340-4(4), the provision that reads, “or by an alternate means approved by the executive secretary.”

2. In R307-340-4(5)(a), the provision that reads, “Sources may request approval for longer times for compliance determination from the executive secretary.”

3. In R307-340-15(1), the provision that reads, “or an alternative method approved by the executive secretary.”

4. In R307-340-15(2), the provision that reads, “or an alternative method approved by the executive secretary or equivalent method.”

5. In R307-340-16(3), the provision that reads, “or approved by the executive secretary.”

In addition, we interpret R307-340-16(2), which requires an owner or operator to repair a malfunctioning control device within 15 days or other period approved by the executive secretary, as not excusing any period of violation of the control requirements in R307-340.

K. R307-341. “Ozone Nonattainment and Maintenance Areas: Cutback Asphalt.” Utah made additions and modifications to simply clarify the purpose, applicability, definitions, limitations on use of cutback asphalt, recordkeeping, and compliance schedule. Additionally, Utah deleted obsolete language because it is not needed in this rule or any other rule. Utah has made administrative revisions to the rule's title where the reference to Salt Lake and Davis Counties was simply replaced with “ozone maintenance area.” EPA is proposing to approve the deletion of the obsolete language and other minor revisions.

L. R307-342. “Ozone Nonattainment and Maintenance Areas: Qualification of Contractors and Test Procedures for Vapor Recovery Systems for Gasoline Delivery Tanks.” Utah made additions and modifications to clarify the purpose, applicability, general requirements, and alternate method of control provisions. Additionally, Utah deleted language because it is not needed in this rule or any other rule. Utah has made administrative revisions to the rule's title where the reference to Salt Lake and Davis Counties was simply replaced with “ozone maintenance area.” EPA is proposing to approve these changes. However, for purposes of clarification, EPA interprets the following provision in R307-342 (in addition to any other request for an AMOC that may arise outside of this provision) as being subject to the requirement in R307-342-7(1) for EPA concurrence, and thus subject to EPA's general statement about alternate methods of control, above:

1. In R307-342-7(3), the provision that reads, “or approved by the executive secretary.”

In addition, we interpret R307-342-7(2), which requires an owner or operator to repair a malfunctioning control device within 15 days or other period approved by the executive secretary, as not excusing any period of violation of the control requirements in R307-342.

V. Proposed Action

As described above, we are proposing the following with respect to the State's March 22, 2007 submittal:

1. We are proposing to approve the State's maintenance demonstration for the 1997 8-hour ozone NAAQS for Salt Lake and Davis Counties, but, in the alternative, to disapprove the maintenance demonstration should comments convince us that approval is not consistent with the Clean Air Act. (See section III.B above.)

2. We are proposing to approve the rest of the State's 1997 8-hour ozone maintenance plan for Salt Lake and Davis Counties, except for the following aspects, which we are proposing to disapprove:

a. Those contingency measures listed in the State's maintenance plan that are voluntary in nature, and the contingency measure described in the maintenance plan as “Establish an Offset Ratio for NOX.” (See section III.D above.)

b. The State's proposal to remove from the SIP the VOC RACT approval orders for Hill Air Force Base. (See section III.E above.)

c. The State's proposal to remove from the SIP the NOX RACT limits for the PacifiCorp Gadsby Power Plant. (See section III.E above.)

d. Section 5.g of the maintenance plan, which indicates that the employer-based trip reduction program is included as part of the plan. (See section III.E above.)

3. We are proposing to take no action on R307-101-2 because we have already acted on a later version of the definitions. (See section IV.A above.)

4. We are proposing to approve R307-110-13, but only to the extent we are proposing to approve the 1997 8-hour ozone maintenance plan. (See section IV.B above.)

EPA is soliciting public comment on its proposed rulemaking as discussed in this document. These comments will be considered before taking final action. Interested parties may participate in the Federal rulemaking procedure by submitting written comments to EPA as discussed in this notice.

VI. Statutory and Executive Order Reviews

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this proposed action merely approves state law as meeting Federal requirements and disapproves state law that does not, and it does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.Approval and Promulgation of Air Quality Implementation Plans; Utah; Maintenance Plan for the 1997 8-Hour Ozone Standard for Salt Lake County and Davis County, page 33 of 33

This proposed rulemaking does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards.

EPA is proposing to approve portions of a revision to the Georgia State Implementation Plan (SIP) submitted by the State of Georgia, through the Georgia Department of Natural Resources' Environmental Protection Division (EPD), on July 26, 2012. The SIP submission includes changes to Georgia's New Source Review (NSR), Prevention of Significant Deterioration (PSD) program to incorporate by reference (IBR) federal PSD requirements regarding fine particulate matter (PM2.5) increments, significant impact levels (SILs), significant monitoring concentration (SMC) and the deferral of, until July 21, 2014, PSD applicability to biogenic carbon dioxide (CO2) emissions from bioenergy and other biogenic stationary sources. EPA is proposing to approve portions of Georgia's SIP submittal because the Agency has preliminarily determined that it is consistent with section 110 of the Clean Air Act (CAA or Act) and EPA regulations regarding NSR permitting.

DATES:

Comments must be received on or before February 1, 2013.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R04-OAR-2012-0622 by one of the following methods:

Instructions: Direct your comments to Docket ID No. “EPA-R04-OAR-2012-0622.” EPA's policy is that all comments received will be included in the public docket without change and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit through www.regulations.gov or email, information that you consider to be CBI or otherwise protected. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.

Docket: All documents in the electronic docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy at the Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding federal holidays.

Table of ContentsI. What action is EPA proposing?II. What is the background for EPA's proposed action?III. What is EPA's analysis of Georgia's SIP revision?IV. Proposed ActionV. Statutory and Executive Order ReviewsI. What action is EPA proposing?

On July 26, 2012, EPD submitted a SIP revision to EPA for approval into the Georgia SIP to IBR 1 federal NSR PSD permitting requirements at Georgia's Air Quality Control Rule 391-3-1-.02(7)—Prevention of Significant Deterioration of Air Quality. These rule changes were provided to comply with federal NSR permitting regulations and include provisions related to the implementation of the PM2.5 NAAQS for the PSD program as promulgated in the rule entitled “Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM2.5)—Increments, Significant Impact Levels (SILs) and Significant Monitoring Concentration (SMC), Final Rule,” 75 FR 64864 (October 20, 2010) (hereafter referred to as “PM2.5 PSD Increment-SILs-SMC Rule”) and the deferral until July 21, 2014, of the application of PSD permitting requirement to biogenic CO2 emissions from bioenergy and other biogenic stationary sources as promulgated in the rule entitled, “Deferral for CO2 Emissions From Bioenergy and Other Biogenic Sources Under the Prevention of Significant Deterioration (PSD) and Title V Programs,” Final Rule, 76 FR 43490 (July 20, 2011) (hereafter referred to as CO2 Biomass Deferral Rule). Additionally, the July 26, 2012, SIP revision (1) IBR into Georgia SIP EPA's interim rulemaking entitled “Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NNSR): Reconsideration of Inclusion of Fugitive Emissions; Interim Rule; Stay and Revisions,” 76 FR 17548 (March 30, 2011) (hereafter referred to as the “Fugitive Emissions Interim Rule”); (2) requests that EPA remove from the SIP the exclusion language at Rule 391-3-1-.02(7) regarding the coarse particle pollution (PM10) surrogate and grandfathering provision promulgated in the “Implementation of the New Source Review Program for Particulate Matter Less Than 2.5 Micrometers,” 73 FR 28321, May 16, 2008 (hereafter referred to as “NSR PM2.5 Rule”); (3) amends the definitions Rule 391-3-1-.01(nnn)—Definitions regarding testing and monitoring of air pollutants; and (4) revises Rule 391-3-1-.03(6)—Exemptions by adding a new exemption for cumulative small modifications at an existing quarry where the quarry is not a major source and the associated emissions increase is less than 10 tons per year of particulate matter and PM10.

1 Throughout this document IBR means incorporate or incorporates by reference.

The two elements of EPD's July 26, 2012, SIP submittal that EPA is not proposing to approve in this action are: (1) incorporation of the SIL thresholds and provisions promulgated in EPA's PM2.5 PSD Increment-SILs-SMC Rule (for reasons explained later in this notice); and (2) revisions to Rules 391-3-1-.02(2)(c)—Incinerators, 391-3-1-.02(www)—Sewage Sludge Incineration, 391-3-1-.02(8)(b)—New Source Performance Standards and 391-3-1-.02(9)(b)—Emissions Standards for Hazardous Air Pollutants, as these regulations are not part of Georgia's federally approved SIP.

II. What is the background for EPA's proposed action?

Today's proposed action to revise the Georgia SIP relates to PSD provisions promulgated in EPA's PM2.5 PSD Increment-SILs-SMC Rule and CO2 Biomass Deferral Rule. Additionally, the July 26, 2012, SIP revision addresses EPA's repeal of the grandfathering provision as promulgated in the Rule entitled “Implementation of the New Source Review Program for Particulate Matter Less Than 2.5 Micrometers (PM2.5); Final Rule to Repeal Grandfather Provision” (76 FR 28646, May 18, 2011) and the extension of the stay in the Fugitive Emissions Interim Rule. More details regarding these rules are found in the respective final rulemakings and are summarized below. For more information on the NSR Program and the PM2.5 NAAQS please refer to the PM2.5 PSD Increment-SILs-SMC Rule and the NSR PM2.5 Rule.

A. PM2.5 PSD Increment-SILs-SMC-Rule

On October 20, 2010, EPA finalized the PM2.5 PSD Increment-SILs-SMC Rule to provide additional regulatory requirements under the PSD program regarding the implementation of the PM2.5 NAAQS for NSR. Specifically, the rule establishes: (1) PM2.5 increments pursuant to section 166(a) of the CAA to prevent significant deterioration of air quality in areas meeting the NAAQS; (2) SILs used as a screening tool (by a major source subject to PSD) to evaluate the impact a proposed major source or modification may have on the NAAQS or PSD increment; and (3) a SMC (also a screening tool) used by a major source subject to PSD to determine if a source must submit to the permitting authority one year of pre-construction air quality monitoring data prior to constructing or modifying a facility. As part of the response to comments on the October 20, 2010, final rulemaking, EPA explained that the Agency agrees that the SILs and SMCs used as de minimis2 thresholds for the various pollutants are useful tools that enable permitting authorities and PSD applicants to screen out “insignificant” activities; however, these values are not required by the Act as part of an approvable SIP program. EPA believes that most states are likely to adopt the SILs and SMCs because of the useful purpose they serve regardless of EPA's position that the values are not mandatory. Alternatively, states may develop more stringent values if they desire to do so. In any case, states are not under any statutory deadline for revising their PSD programs to add these screening tools. See 75 FR 64864, 64900.

2 The de minimis principle is grounded in the decision described by the court case Alabama Power Co. v. Costle, 636 F.2d 323, 360 (DC Cir. 1980). In this case, reviewing EPA's 1978 PSD regulations, the court recognized that “there is likely a basis for an implication of de minimis authority to provide exemption when the burdens of regulation yield a gain of trivial or no value.” 636 F.2d at 360.

Georgia's July 26, 2012, SIP revision IBR the NSR changes promulgated in the PM2.5 PSD Increment-SILs-SMC Rule to be consistent with the federal NSR regulations and to appropriately implement the State's NSR program for the PM2.5 NAAQS. More detail on the PM2.5 PSD Increment-SILs-SMC Rule can be found in EPA's October 20, 2010, final rule and is summarized below. See 75 FR 64864. For the reasons explained below, EPA is not proposing to take action to approve the SILs (promulgated in the PM2.5 PSD Increment-SILs-SMC Rule) into the Georgia SIP in this rulemaking. EPA's authority to implement the SILs and SMC for PSD purposes has been challenged by the Sierra Club. Sierra Club v. EPA, Case No 10-1413 (D.C. Circuit Court).3 More details regarding Georgia's changes to its PSD regulations are also summarized below in Section III.

3 On April 6, 2012, EPA filed a brief with the D.C. Circuit Court defending the Agency's authority to implement SILs and SMC for PSD purposes.

1. What are PSD increments?

As established in part C of title I of the CAA, EPA's PSD program protects public health from adverse effects of air pollution by ensuring that construction of new or modified sources in attainment or unclassifiable areas does not lead to significant deterioration of air quality while simultaneously ensuring that economic growth will occur in a manner consistent with preservation of clean air resources. Under section 165(a)(3) of the CAA, a PSD permit applicant must demonstrate that emissions from the proposed construction and operation of a facility “will not cause, or contribute to, air pollution in excess of any maximum allowable increase or allowable concentration for any pollutant.” In other words, when a source applies for a permit to emit a regulated pollutant in an area that meets the NAAQS, the state and EPA must determine if emissions of the regulated pollutant from the source will cause significant deterioration in air quality. Significant deterioration occurs when the amount of the new pollution exceeds the applicable PSD increment, which is the “maximum allowable increase” of an air pollutant allowed to occur above the applicable baseline concentration 4 for that pollutant. PSD increments prevent air quality in clean areas from deteriorating to the level set by the NAAQS. Therefore, an increment is the mechanism used to estimate “significant deterioration” of air quality for a pollutant in an area.

4 Section 169(4) of the CAA provides that the baseline concentration of a pollutant for a particular baseline area is generally the air quality at the time of the first application for a PSD permit in the area.

For PSD baseline purposes, a baseline area for a particular pollutant emitted from a source includes the attainment or unclassifiable area in which the source is located as well as any other attainment or unclassifiable area in which the source's emissions of that pollutant are projected (by air quality modeling) to result in an ambient pollutant increase of at least 1 microgram per meter cubed (μg/m3) (annual average). See 40 CFR 52.21(b)(15)(i). Under EPA's existing regulations, the establishment of a baseline area for any PSD increment results from the submission of the first complete PSD permit application and is based on the location of the proposed source and its emissions impact on the area. Once the baseline area is established, subsequent PSD sources locating in that area need to consider that a portion of the available increment may have already been consumed by previous emissions increases. In general, the submittal date of the first complete PSD permit application in a particular area is the operative “baseline date” after which new sources must evaluate increment consumption.5 On or before the date of the first complete PSD application, emissions generally are considered to be part of the baseline concentration, except for certain emissions from major stationary sources. Most emissions increases that occur after the baseline date will be counted toward the amount of increment consumed. Similarly, emissions decreases after the baseline date restore or expand the amount of increment that is available. See 75 FR 64864. As described in the PM2.5 PSD Increment-SILs-SMC Rule, and pursuant to the authority under section 166(a) of the CAA, EPA promulgated numerical increments for PM2.5 as a new pollutant 6 for which NAAQS were established after August 7, 1977,7 and derived 24-hour and annual PM2.5 increments for the three area classifications (Class I, II and III) using the “contingent safe harbor” approach. See 75 FR 64864 at 64869 and ambient air increment table at 40 CFR 51.166(c)(1) and 52.21(c).

5 Baseline dates are pollutant specific. That is, a complete PSD application establishes the baseline date only for those regulated NSR pollutants that are projected to be emitted in significant amounts (as defined in the regulations) by the applicant's new source or modification. Thus, an area may have different baseline dates for different pollutants.

6 EPA generally characterized the PM2.5 NAAQS as a NAAQS for a new indicator of PM. EPA did not replace the PM10 NAAQS with the NAAQS for PM2.5 when the PM2.5 NAAQS were promulgated in 1997. EPA rather retained the annual and 24-hour NAAQS for PM2.5 as if PM2.5 was a new pollutant even though EPA had already developed air quality criteria for PM generally. See 75 FR 64864 (October 20, 2010).

7 EPA interprets 166(a) to authorize EPA to promulgate pollutant-specific PSD regulations meeting the requirements of section 166(c) and 166(d) for any pollutant for which EPA promulgates a NAAQS after 1977.

In addition to PSD increments for the PM2.5 NAAQS, the PM2.5 PSD Increment-SILs-SMC Rule amended the definition at 40 CFR 51.166 and 52.21 for “major source baseline date” and “minor source baseline date” (including trigger dates) to establish the PM2.5 NAAQS specific dates associated with the implementation of PM2.5 PSD increments. See 75 FR 64864. In accordance with section 166(b) of the CAA, EPA required the states to submit revised implementation plans to EPA for approval (to adopt the PM2.5 PSD increments) within 21 months from promulgation of the final rule (by July 20, 2012). Regardless of when a state submits its revised SIP, the emissions from major sources subject to PSD for PM2.5 for which construction commenced after October 20, 2010 (major source baseline date), consume PM2.5 increment and should be included in the increment analyses occurring after the minor source baseline date is established for an area under the state's revised PSD program. See 75 FR 64864. As discussed in detail in Section III, Georgia's July 26, 2012, SIP revision IBR the PM2.5 PSD increment permitting requirements promulgated in the PM2.5 PSD Increment-SILs-SMC Rule.

2. What are significant monitoring concentrations?

Under the CAA and EPA regulations, an applicant for a PSD permit is required to gather preconstruction monitoring data in certain circumstances. CAA Section 165(a)(7) calls for “such monitoring as may be necessary to determine the effect which emissions from any such facility may have, or is having, on air quality in any areas which may be affected by emissions from such source.” In addition, CAA section 165(e) requires an analysis of the air quality in areas affected by a proposed major facility or major modification and calls for gathering one year of monitoring data unless the reviewing authority determines that a complete and adequate analysis may be accomplished in a shorter period. These requirements are codified in EPA's PSD regulations at 40 CFR 51.166(m) and 40 CFR 52.21(m). In accordance with EPA's Guideline for Air Quality Modeling (40 CFR part 51, appendix W), the preconstruction monitoring data are primarily used to determine background concentrations in modeling conducted to demonstrate that the proposed source or modification will not cause or contribute to a violation of the NAAQS. See 40 CFR part 51, appendix W, section 9.2. SMCs are numerical values that represent thresholds of insignificant (i.e., de minimis), monitored (ambient) impacts on pollutant concentrations. In EPA's PM2.5 PSD Increment-SILs-SMC Rule, EPA established a SMC of 4 µg/m3 for PM2.5.

Using the SMC as a screening tool, sources may be able to demonstrate that the modeled air quality impact of emissions from the new source or modification, or the existing air quality level in the area where the source would construct, is less than the SMC (i.e., de minimis), and as such, may be allowed to forego the preconstruction monitoring requirement for a particular pollutant at the discretion of the reviewing authority. See 40 CFR 51.166(i)(5) and 52.21(i)(5). SMCs are not minimum required elements of an approvable SIP under the CAA. This de minimis value is widely considered to be a useful component for implementing the PSD program, but is not absolutely necessary for the states to implement PSD programs. States can satisfy the statutory requirements for a PSD program by requiring each PSD applicant to submit air quality monitoring data for PM2.5 without using de minimis thresholds to exempt certain sources from such requirements. See 75 FR 64864. The PM2.5 SMC became effective under the federal PSD program on December 20, 2010. States with EPA-approved PSD programs that adopt the SMC for PM2.5, however, may use the SMC, once it is part of an approved SIP, to determine when it may be appropriate to exempt a particular major stationary source or major modification from the monitoring requirements under its state PSD program. Georgia's July 26, 2012, revision IBR the SMC provision into the Georgia SIP.

Recently, the Sierra Club filed suit challenging EPA's authority to implement the PM2.5 SILs 8 as well as the SMC for PSD purposes as promulgated in the October 20, 2010, rule. Sierra Club v. EPA, Case No 10-1413, D.C. Circuit Court. Specifically regarding the SMC, Sierra Club claims that the use of SMC to exempt a source from submitting a year's worth of monitoring data is inconsistent with the CAA. EPA responded to Sierra Club's claims in a brief dated April 6, 2012, which describes the Agency's authority to develop and promulgate SMCs.9 A copy of EPA's April 6, 2012, brief can be found in the docket for today's rulemaking at www.regulations.gov using docket ID: EPA-R04-OAR-2012-0622.

8 As mentioned earlier, due to litigation by the Sierra Club, EPA is not proposing to take action on the SILs portion of the Georgia's July 26, 2012, SIP revision at this time but will take action once the court case regarding SILs implementation is resolved.

9 Additional information on this issue can also be found in an April 25, 2012, comment letter from EPA Region 6 to the Louisiana Department of Environmental Quality regarding the SILs-SMC litigation. A copy of this letter can be found in the docket for today's rulemaking at www.regulations.gov using docket ID: EPA-R04-OAR-2012-0622.

B. CO2 Biomass Deferral1. The GHG Tailoring Rule

On June 3, 2010 (effective August 2, 2010), EPA promulgated a final rulemaking, entitled “Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule; Final Rule” (hereafter referred to as the GHG Tailoring Rule), for the purpose of relieving overwhelming permitting burdens from the regulation of greenhouse gases (GHG) that would, in the absence of the rule, fall on permitting authorities and sources. See 75 FR 31514. EPA accomplished this by tailoring the applicability criteria that determine which GHG emission sources become subject to the PSD program of the CAA. In particular, EPA established in the GHG Tailoring Rule a phase-in approach for PSD applicability and estblished the first two steps of the phase-in for the largest GHG emitters.10 On January 13, 2011, EPD submitted a SIP revision to EPA to IBR into the Georgia SIP (at 391-3-1-.02(7)), the version of 40 CFR 52.21 as of June 3, 2010, which included the GHG Tailoring Rule thresholds.11 EPA took final action to approve Georgia's SIP revision on September 8, 2011. See 76 FR 55572. Please refer to the GHG Tailoring Rule for specific details on the PSD thresholds.

11 Georgia's submittal also revised the State's title V operating permit provisions (which are not included in the federally approved SIP) to incorporate the GHG Tailoring Rule provisions. As such, EPA did not taking final action to approve Georgia's update to its title V.

2. EPA's CO2 Biomass Deferral Rule

In the July 20, 2011, final rulemaking, EPA deferred until July 21, 2014, the consideration of CO2 emissions from bioenergy and other biogenic sources (hereafter referred to as “biogenic CO2 emissions”) when determining whether a stationary source meets the PSD and title V applicability thresholds, including those for the application of best available control technology (BACT).12See 76 FR 43490. Thus, under the federal PSD rules, stationary sources that combust biomass (or otherwise emit biogenic CO2 emissions) and construct or modify during the deferral period will not be subject to the application of PSD to the biogenic CO2 emissions resulting from those actions. The deferral applies only to biogenic CO2 emissions and does not affect non-GHG pollutants or other GHGs (e.g., methane and nitrous oxide) emitted from the combustion of biomass fuel. Also, the deferral only pertains to regulation of biogenic CO2 emissions under the PSD and title V programs and does not pertain to any other EPA programs such as the GHG Reporting Program.

12 As with the Tailoring Rule, the Biomass Deferral addresses both PSD and title V requirements. However, EPA is only taking action on Georgia's PSD program as part of this action.

Biogenic CO2 emissions are defined as emissions of CO2 from a stationary source directly resulting from the combustion or decomposition of biologically-based materials other than fossil fuels and mineral sources of carbon. Examples of “biogenic CO2 emissions” include, but are not limited to:

• CO2 from the combustion of biogas collected from biological decomposition of waste in landfills, wastewater treatment, or manure management processes;

• CO2 from fermentation during ethanol production or other industrial fermentation processes;

• CO2 from combustion of the biological fraction of municipal solid waste or biosolids;

• CO2 from combustion of the biological fraction of tire-derived fuel; and

• CO2 derived from combustion of biological material, including all types of wood and wood waste, forest residue, and agricultural material.

The deferral is intended to be a temporary measure, in effect for no more than three years, to allow the Agency time to conduct detailed examination of the science and technical issues related to accounting for biogenic CO2 emissions, and determine what, if any, treatment of biogenic CO2 emissions should be in the PSD and title V programs. The biomass deferral rule is not EPA's final determination on the treatment of biogenic CO2 emissions in those programs. The Agency plans to complete its science and technical review and any follow-up rulemakings within the three-year deferral period and further believes that three years is ample time to complete these tasks. It is possible that the subsequent rulemaking, depending on the nature of EPA's determinations, would supersede the biomass deferral rulemaking and become effective in fewer than three years. In that event, Georgia may revise its SIP accordingly.

EPA's final biomass deferral rule is an interim deferral for biogenic CO2 emissions only and does not relieve sources of the obligation to meet the PSD and title V permitting requirements for other pollutant emissions that are otherwise applicable to the source during the deferral period or that may be applicable to the source at a future date pending the results of EPA's study and subsequent rulemaking action. This means, for example, that if the deferral is applicable to biogenic CO2 emissions from a particular source during the three-year effective period and the study and future rulemaking do not provide for a permanent exemption from PSD and title V permitting requirements for the biogenic CO2 emissions from a source with particular characteristics, then the deferral would end for that type of source and its biogenic CO2 emissions would have to be appropriately considered in any applicability determinations that the source may need to conduct for future stationary source permitting purposes, consistent with that subsequent rulemaking and the final GHG Tailoring Rule (e.g., a major source determination for title V purposes or a major modification determination for PSD purposes). EPA also wishes to clarify that the agency does not require that a PSD permit issued during the deferral period be amended or that any PSD requirements in a PSD permit existing at the time the deferral took effect, such as BACT limitations, be revised or removed from an effective PSD permit for any reason related to the deferral or when the deferral period expires.

Under 40 CFR 52.21(w), any PSD permit shall remain in effect, unless and until it expires or it is rescinded, under the limited conditions specified in that provision. Thus, a PSD permit that is issued to a source while the deferral was effective need not be reopened or amended if the source is no longer eligible to exclude its biogenic CO2 emissions from PSD applicability after the deferral expires. However, if such a source undertakes a modification that could potentially require a PSD permit and the source is not eligible to continue excluding its biogenic CO2 emissions after the deferral expires, the source will need to consider its biogenic CO2 emissions in assessing whether it needs a PSD permit to authorize the modification.

Any future actions to modify, shorten, or make permanent the deferral for biogenic sources are beyond the scope of the biomass deferral action and this proposed approval of the deferral into the Georgia SIP, and will be addressed through subsequent rulemaking. The results of EPA's review of the science related to net atmospheric impacts of biogenic CO2 and the framework to properly account for such emissions in title V and PSD permitting programs based on the study are prospective and unknown. Thus, EPA is unable to predict which biogenic CO2 sources, if any, currently subject to the deferral as incorporated into the Georgia SIP would be subject to any permanent exemptions or which currently deferred sources would be potentially required to account for their emissions in the future rulemaking EPA has committed to undertake for such purposes in three or fewer years. Only in that rulemaking can EPA address the question of extending the deferral or putting in place requirements that would have the equivalent effect on sources covered by the biomass deferral. Once that rulemaking has occurred, Georgia may address related revisions to its SIP.

III. What is EPA's analysis of Georgia's SIP revision?

Georgia currently has a SIP-approved NSR program for new and modified stationary sources. EPD's PSD preconstruction rules are found at Georgia Air Quality Control Rule 391-3-1-.02(7)—Prevention of Significant Deterioration of Air Quality and apply to major stationary sources or modifications constructed in areas designated attainment areas or unclassifiable/attainment areas as required under part C of title I of the CAA with respect to the NAAQS. Georgia's Rule 391-3-1-.02(7) IBR the federal NSR PSD regulations at 40 CFR 52.21 into the Georgia SIP. In effect, EPD's July 26, 2012, SIP revision revises Rule 391-3-1-.02(7) by updating the State's IBR date to July 20, 2011, which includes the federal PSD permitting updates promulgated in the PM2.5 PSD Increment-SILs-SMC Rule, the CO2 Biomass Deferral Rule and the extension of the stay in the Fugitive Emissions Interim Rule. Additionally, the July 26, 2012, SIP submission revises Rule 391-3-1-.02(7) by removing language to address EPA's repeal of the PM10 surrogate and grandfathering provisions and clarifies at subparagraph (a)(1) of 391-3-1-.01 that all dates associated with IBR of the federal PSD rules (at 40 CFR 52.21) refer to the date of publication of those rules in the Federal Register. In addition to changes to Rule 391-3-1-.02(7), the July 26, 2012, SIP revision also (1) amends Georgia's definitions at 391-3-1-.01 by revising subparagraph (nnnn) to reference the February 1, 2012, update to Georgia's “Procedures for Testing and Monitoring Sources of Air Pollutants,” and; (2) modifies Rule 391-3-1-.03(6) by adding a new exemption from SIP permitting requirements (at subparagraph (i)(4)) for small modifications to an existing quarry that is not a major source, where the combined emissions increases, including any contemporaneous emission decreases from all nonexempt modified activities, are less than 10 tons per year of particulate matter and PM10. The new quarry exemption may not be used to avoid any emission limitations or standards of the Rules for Air Quality Control Chapter 391-3-1-.02 (e.g., PSD requirements), lower the potential to emit below “major source” thresholds, or avoid any “applicable requirement” as defined in 40 CFR Part 70.2. See Georgia Rule 391-3-1-.03(6).

These changes to Georgia's rules became state effective on August 9, 2012. EPA is proposing to approve changes to Georgia's Rule 391-3-1-.02(7), to update the State's existing SIP-approved PSD program to be consistent with federal NSR regulations (at 40 CFR 52.21) and the CAA. In addition, EPA is proposing to approve Georgia's requested changes to Rules 391-3-1-.01 and .0. 3. More details on EPA's analysis and proposed approval of the portions of Georgia's July 26, 2012, SIP submittal addressing PSD provisions promulgated in the PM2.5 PSD Increment-SILs-SMC Rule, the CO2 Deferral Rule, the Fugitive Emissions Interim Rule and the NSR PM2.5 Rule (grandfathering provision) are discussed below.

EPD's July 26, 2012, SIP revision IBR the following provisions into the Georgia SIP at regulation 391-3-1-.02(7) as promulgated in the October 20, 2010, PM2.5 PSD Increment-SILs-SMC Rule: (1) PSD increments for PM2.5 annual and 24-hour NAAQS pursuant to section 166(a) of the CAA; (2) SILs used as a screening tool (used by a major source subject to PSD) to evaluate the impact a proposed major source or modification may have on the NAAQS or PSD increment; and (3) SMC to determine the level of data gathering required of a major source in support of its PSD permit application for PM2.5 emissions.

Specifically, Georgia's July 26, 2012, SIP revision IBR into the Georgia SIP (at 391-3-1-.02(7)) the PM2.5 PSD increments as amended in the tables at 40 CFR 52.21(c) and (p)(5) (for Class I Variances) the amendments to the terms “major source baseline date” (as amended at 40 CFR 52.21(b)(14)(i)(c)); “minor source baseline date” (including establishment of the “trigger date”) (40 CFR 52.21(b)(14)(ii)(c)); and the definition of “baseline area” (as amended at 40 CFR 52.21(b)(15)(i) and (ii)). These changes provide for the implementation of the PM2.5 PSD increments for the PM2.5 NAAQS in the State's PSD program. In today's action, EPA is proposing to approve Georgia's July 26, 2012, SIP revision to address PM2.5 PSD increments.

Regarding the SILs and SMC established in the October 20, 2010, PM2.5 PSD Increment-SILs-SMC Rule, the Sierra Club has challenged EPA's authority to implement SILs and SMC. In a brief filed in the DC Circuit on April 6, 2012, EPA described the Agency's authority under the CAA to promulgate and implement the SMCs and SILs de minimis thresholds. With respect to the SMC, Georgia's July 26, 2012, SIP revision IBR the SMC of 4 µg/m3 for PM2.5 NAAQS at 391-3-1-.02(7). Georgia's July 26, 2012, SIP revision is consistent with EPA's current promulgated provisions in the October 20, 2010, PM2.5 PSD Increment-SILs-SMC Rule. EPA is proposing to approve this promulgated threshold into the Georgia SIP as EPA believes the SMC is a valid exercise of the Agency's de minimis authority. However, EPA notes that future court action may require subsequent rule revisions and SIP revisions from the State of Georgia.

The July 26, 2012, SIP revision submitted by Georgia to IBR the new PSD requirements for PM2.5 pursuant to the PM2.5 PSD Increment-SILs-SMC Rule also includes the new regulatory text at 40 CFR 52.21(k)(2), concerning the implementation of SILs for PM2.5. EPA stated in the preamble to the October 20, 2010, final rule that we do not consider the SILs to be a mandatory SIP element, but regard them as discretionary on the part of a regulating authority for use in the PSD permitting process. Nevertheless, the PM2.5 SILs are currently the subject of litigation before the U.S. Court of Appeals. Sierra Club v. EPA, Case No 10-1413 (DC Circuit). In response to that litigation, EPA has requested that the court remand and vacate the regulatory text in EPA's PSD regulations at paragraph (k)(2) so that EPA can make necessary rulemaking revisions to that text. In light of EPA's request for remand and vacatur and the acknowledgement of the need to revise the regulatory text presently contained at paragraph (k)(2) of sections 51.166 and 52.21, EPA does not believe that it is appropriate at this time to approve that portion of Georgia's SIP revision that contains the affected regulatory text in the State's PSD regulations, at 391-3-1-0.2(7). Instead, EPA is taking no action at this time with regard to that specific provision contained in the SIP revision. EPA will take action on the SILs portion of Georgia's July 26, 2012, SIP revision in a separate rulemaking once the issue regarding the court case has been resolved.

2. CO2 Biomass Deferral

In the July 20, 2011, CO2 Biomass Deferral Rule, similar to the approach with the GHG Tailoring Rule, EPA incorporated the biomass deferral into the Federal PSD program by amending the definition of “subject to regulation” under 40 CFR 51.166 and 52.21, respectively. Georgia's July 26, 2012, SIP revision IBR into the Georgia SIP 40 CFR 52.21 as of July 20, 2011, which includes the CO2 Biomass Deferral revision to the definition of “subject to regulation” deferring, until July 21, 2014, PSD applicability to biogenic carbon dioxide (CO2) emissions from bioenergy and other biogenic stationary sources. EPA is proposing to approve Georgia's IBR of the CO2 Biomass Deferral Rule.

3. Fugitive Emissions Interim Rule

Georgia's July 26, 2012, SIP revision also IBR the extension of the stay of the Fugitive Emissions Rule into the Georgia PSD program at 391-3-1-.02(7). On December 19, 2008, EPA issued a final rule revising the requirements of the NSR permitting program regarding the treatment of fugitive emissions. See 73 FR 77882. The final rule required fugitive emissions to be included in determining whether a physical or operational change results in a major modification only for sources in industries that have been designated through rulemaking under section 302(j) 13 of the CAA. As a result of EPA granting the Natural Resource Defense Council's petition for reconsideration on the original Fugitive Emissions Rule 14 on March 31, 2010, EPA stayed the Fugitive Emissions Rule (73 FR 77882) for 18 months to October 3, 2011. The stay allowed the Agency time to propose, take comment and issue a final action regarding the inclusion of fugitive emissions in NSR applicability determinations. On March 30, 2011 (76 FR 17548), EPA proposed an interim rule which superseded the March 31, 2010, stay and clarified and extended the stay of the Fugitive Emission Rule until EPA completes its reconsideration. The interim rule simply reverts the CFR text back to the language that existed prior to the Fugitive Emissions Rule changes in the December 19, 2008, rulemaking. EPA plans to issue a final rule affirming the interim rule as final. The final rule will remain in effect until EPA completes its reconsideration. EPA is proposing to approve Georgia's IBR of the interim rulemaking extending the stay of the Fugitives Emissions Rule into its SIP at Rule 391-3-1-.02(7).

14 On April 24, 2009, EPA agreed to reconsider the approach to handling fugitive emissions and granted a 3-month administrative stay of the Fugitive Emissions Rule. The administrative stay of the Fugitive Emissions Rule became effective on September 30, 2009. EPA put an additional three-month stay in place from December 31, 2009, until March 31, 2010.

4. PM2.5 Grandfathering Provision

In the NSR PM2.5 Rule, EPA finalized regulations to establish the framework for implementing preconstruction permit review for the PM2.5 NAAQS in both attainment and nonattainment areas including the grandfather provision which allowed PSD applicants that submitted their complete permit application prior to the July 15, 2008 effective date of the NSR PM2.5 Rule to continue to rely on the 1997 p.m.10 Surrogate Policy rather than amend their application to demonstrate compliance directly with the new PM2.5 requirements. See 73 FR 28321. On January 13, 2011, Georgia submitted a SIP revision to IBR into the Georgia SIP the version of 40 CFR 52.21 as of June 3, 2010 which included language that excluded the grandfathering exemption (at 40 CFR 52.21(i)(1)(xi)) from the state's PSD regulations (at Rule 391-3-1-.02(7)(b)(6)(i)) ensuring that sources were not subject to the grandfathering provision. EPA approved Georgia's January 13, 2011, SIP revision on September 8, 2011(76 FR 55572).

On May 18, 2011, EPA took final action to repeal the PM2.5 grandfathering provision at 40 CFR 52.21(i)(1)(xi). See 76 FR 28646. Georgia's July 26, 2012, SIP submittal incorporates into the Georgia SIP the version of 40 CFR 52.21 as of July 20, 2011, which includes the May 18, 2011, repeal of the grandfather provision. Thus, the language previously approved into Georgia's SIP at Rule 391-3-1-.02(7)(b)(6)(i) that excludes the grandfathering provision is no longer necessary. Georgia's July 26, 2012, SIP submittal removes the unnecessary language pertaining to the grandfather provision from Rule 391-3-1-.02(7)(b)(6)(i).15 EPA is proposing to approve this portion of Georgia's July 26, 2012, SIP submittal.

15 Georgia's previous incorporation by reference of 40 CFR 52.21 at 391-3-1-.02(7) was as of June 3, 2010, which did not include the May 18, 2011, repeal of the PM10 Surrogate Policy; therefore the grandfathering exclusion language at 391-3-1-.02(7)(b)(6)(i) was necessary at that time. The June 3, 2010, IBR date was approved into the Georgia SIP on September 8, 2011.

IV. Proposed Action

EPA is proposing to approve portions of Georgia's July 26, 2012, SIP revision adopting federal regulations amended in the October 20, 2010, PM2.5 PSD Increment-SILs-SMC rule, the June 3, 2010, CO2 Biomass Deferral Rule; the March 30, 2011, Fugitive Emissions Interim Rule, the additional amendments regarding PM2.5 Grandfathering Provision, and the definition and exemption revisions into the Georgia SIP. EPA is not however proposing to approve in this rulemaking Georgia's SIP revisions regarding the SIL thresholds and provisions and Rule 391-3-1-.02(c)—Incinerators, 391-3-1-.02(www)—Sewage Sludge Incineration, 391-3-1-.02(8)(b)—New Source Performance Standards and 391-3-1-.02(9)(b)—Emissions Standards for Hazardous Air Pollutants. EPA has made the preliminary determination that this SIP revision, with regard to the aforementioned proposed actions, is approvable because it is consistent with section 110 of the CAA and EPA regulations regarding NSR permitting.

V. Statutory and Executive Order Reviews

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this proposed action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 F43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this proposed rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

EPA is proposing to correct an error in a previous rulemaking that revised the boundaries between nonattainment areas in Southern California established under the Clean Air Act for the purposes of addressing the revoked national ambient air quality standard for one-hour ozone. EPA is also proposing to revise the boundaries of certain Southern California air quality planning areas to designate the Indian country of the Morongo Band of Mission Indians, California (Morongo Reservation) as a separate air quality planning area for the one-hour and 1997 eight-hour ozone standards.

DATES:

Written comments must be received on or before February 1, 2013.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R09-OAR-2012-0936, by one of the following methods:

Instructions: All comments will be included in the public docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Information that you consider CBI or otherwise protected should be clearly identified as such and should not be submitted through the http://www.regulations.gov or email; http://www.regulations.gov is an anonymous access system, and EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send email directly to EPA, your email address will be automatically captured and included as part of the public comment. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.

Docket: The index to the docket for this action is available electronically at http://www.regulations.gov and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available in either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed directly below.

Throughout this document, the terms “we,” “us,” “our,” and “Agency” refer to EPA.

Table of ContentsI. BackgroundA. Banning Pass and the Morongo Band of Mission IndiansB. National Ambient Air Quality StandardsC. Area Designations and ClassificationsII. Proposed ActionA. Legal AuthorityB. Proposed Correction to 2003 ActionC. Proposed Boundary Redesignation of the Morongo Reservation as a Separate Nonattainment Area for the One-Hour Ozone and Eight-Hour Ozone StandardsIII. Summary of Proposed Action and Request for Public CommentIV. Statutory and Executive Order ReviewsI. BackgroundA. Banning Pass and the Morongo Band of Mission Indians

Connecting the South Coast Air Basin to the Coachella Valley, the Banning Pass (also known as the San Gorgonio Pass) is one of the three major routes by which air pollutants are transported out of the Los Angeles metropolitan area (which lies within the South Coast Air Basin). Banning Pass runs in an east-west direction for about 15 miles and is about 5 miles wide. The pass starts west of Beaumont, California at an elevation of about 2,200 feet and reaches a maximum elevation of around 2,600 feet in the city of Beaumont, then drops to an elevation of near 1,400 feet between Cabazon and White Water. The San Bernardino Mountains are on the north side of the pass and the San Jacinto Mountains are on the south side. The San Bernardino Mountains reach a maximum elevation of approximately 11,500 feet at the top of San Gorgonio Mountain and the San Jacinto Mountains reach a maximum elevation of approximately 10,800 feet at Mt. San Jacinto.

The Morongo Band of Mission Indians, California (“Morongo Tribe” or “Tribe”) is a federally-recognized Indian tribe whose Indian country 1 (“Morongo Reservation” or “Reservation”) lies within the Banning Pass. The Morongo Reservation covers approximately 35,000 acres and is home to approximately 1,500 full-time residents.2 The Morongo Reservation is rural, and most of the current land use is residential or agricultural. The Morongo Reservation also hosts a hotel and casino, among other enterprises.

1 “Indian country” as defined at 18 U.S.C. 1151 refers to: “(a) All land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.” The Morongo Tribe is the only Tribe that has Indian country in the portion of the Banning Pass at issue in this rulemaking.

The eastern edge of the Morongo Reservation abuts the current boundary between the South Coast Air Basin and Southeast Desert/Coachella Valley air planning areas. Most of the Morongo Reservation is located north of Interstate 10, just east of the City of Banning, but some of the Reservation is located south of Interstate 10 as well.

B. National Ambient Air Quality Standards

The Clean Air Act (CAA or “Act”) requires EPA to establish a National Ambient Air Quality Standard (NAAQS or “standard”) for pollutants that “may reasonably be anticipated to endanger public health and welfare” and to develop a primary and secondary standard for each NAAQS. The primary standard is designed to protect human health with an adequate margin of safety and the secondary standard is designed to protect public welfare and the environment. EPA has set NAAQS for six common air pollutants, referred to as criteria pollutants: Ozone, carbon monoxide, nitrogen dioxide, sulfur dioxide, particulate matter, and lead.

In 1979, EPA promulgated the first ozone 3 standard of 0.12 parts per million (ppm), averaged over a one-hour period (“one-hour ozone standard”), to replace an earlier photochemical oxidant standard. In 1997, EPA revised the ozone standard to 0.08 ppm, eight-hour average (“1997 eight-hour ozone standard”), and then, in 2008, lowered the eight-hour ozone standard to 0.075 ppm (“2008 ozone standard”). Today's proposed action relates only to the designations and classifications for the one-hour ozone and 1997 eight-hour ozone standards, discussed below, but relies on EPA's analysis and rationale for the Agency's recent designations for the 2008 ozone standard.

3 Ground-level ozone is a gas that is formed by the reaction of volatile organic compounds (VOC) and oxides of nitrogen (NOX) in the atmosphere in the presence of sunlight. These precursor emissions are emitted by many types of pollution sources, including power plants and industrial emissions sources, on-road and off-road motor vehicles and engines, and smaller sources, collectively referred to as area sources.

C. Area Designations and Classifications

Areas of the country were originally designated as attainment, nonattainment, or unclassifiable following enactment of the 1977 Amendments to the CAA. See 43 FR 8962 (March 3, 1978). These designations were generally based on monitored air quality values compared to the applicable standard. Under the 1990 Amendments to the CAA, ozone nonattainment areas were further classified as “Marginal,” “Moderate,” “Serious,” “Severe” or “Extreme” depending upon the severity of the ozone problem. Area designations and classifications are codified in 40 CFR part 81; area designations and classifications for California are codified at 40 CFR 81.305.

EPA has historically designated areas in Southern California by referencing air basins, including the South Coast Air Basin 4 and the Southeast Desert Air Basin. More recently, the EPA has recognized California's division of the former Southeast Desert Air Basin into the Mojave Desert Air Basin and the Salton Sea Air Basin. The relevant portion of the Southeast Desert Air Basin (and Salton Sea Air Basin) for the purposes of this proposed action is Coachella Valley, which covers roughly the middle third of Riverside County, i.e., east of the South Coast Air Basin and west of the Little San Bernardino Mountains.

4 The South Coast includes Orange County, the southwestern two-thirds of Los Angeles County, southwestern San Bernardino County, and western Riverside County (see 40 CFR 81.305).

Historically, the Morongo Reservation was included in the Coachella Valley portion of the Southeast Desert Air Basin and was designated accordingly for the various standards. In 2002, the State of California requested that EPA revise the boundaries of the South Coast Air Basin and the Southeast Desert Air Basin to remove the Banning Pass area from the Coachella Valley portion of the Southeast Desert Air Basin and include it in the South Coast Air Basin. See 68 FR 57820 (October 7, 2003).5 Specifically, California sought to establish a new boundary approximately 18 miles east of the then-established boundary between the South Coast Air Basin and the Coachella Valley portion of the Southeast Desert Air Basin. The boundary between the two basins was to be moved from the range line common to Range 2 West and Range 1 West to the range line common to Range 2 East and Range 3 East (San Bernardino Base and Meridian).6 On October 7, 2003, EPA approved California's boundary change request (68 FR 57820).

5 California also requested two other specific boundary changes: (1) To move the eastern boundary of the Coachella Valley portion of the Southeast Desert ozone nonattainment area further east to match the boundaries of the Coachella Valley PM-10 nonattainment area, and (2) to correct an error in the eastern boundary of the San Bernardino County portion of the South Coast Air Basin with respect to carbon monoxide. Unlike the boundary change to enlarge the South Coast to include the entire Banning Pass area, the change in the eastern boundary of the Coachella Valley portion of the Southeast Desert ozone nonattainment area did not affect Indian country and would not be affected by today's proposed action. The approval of the State's request to correct the carbon monoxide boundary simply fixed a typographical error and thereby removed from the South Coast carbon monoxide nonattainment area a portion of San Bernardino County that neither EPA nor California intended to be included. See 68 FR 48848, at 48850 (August 15, 2003). EPA's correction of the carbon monoxide boundary in San Bernardino County would also be unaffected by today's proposed action.

6 For a detailed map of the area, please see the technical support document (TSD) for this proposed rulemaking available in the docket for this action, EPA-R09-OAR-2012-0936.

With respect to the one-hour ozone standard, EPA's 2003 action had the effect of moving the Morongo Reservation from the Coachella Valley portion of the “Southeast Desert Modified AQMA Area” (“Southeast Desert”) to the South Coast Air Basin and changing the designations and classifications accordingly. Specifically, EPA's 2003 action had the effect of changing the ozone nonattainment area classification for the Banning Pass area, including the Morongo Reservation, from “Severe-17” to “Extreme”.7

7 For carbon monoxide, EPA's action had the effect of changing the designation of the Banning Pass area from “unclassifiable/attainment” to “Serious” nonattainment. With respect to particulate matter with an aerodynamic diameter less than or equal to a nominal 10 micrometers (“PM10”), the action did not change the designation or classification of the Banning Pass because both the South Coast Air Basin and Coachella Valley are “Serious” nonattainment areas for that pollutant. Both the South Coast and Coachella Valley are designated as unclassifiable or attainment for the nitrogen dioxide and sulfur dioxide standards, but, for nitrogen dioxide, the South Coast Air Basin is a former nonattainment area for which a maintenance plan has been approved. See 63 FR 39747 (July 24, 1998). Today's proposed action relates only to the designations and classifications for the one-hour ozone and 1997 eight-hour ozone standards.

In 2004, EPA promulgated area designations and classifications for the 1997 eight-hour ozone standard. Among the California areas, EPA designated the “Los Angeles-South Coast Air Basin, CA,” the boundary of which coincided with the boundary for the one-hour ozone standard, as amended in 2003 to include the entire Banning Pass, including the Morongo Reservation, as a “Severe-17” nonattainment area. See 69 FR 23858 (April 30, 2004). In EPA's 2004 final rule, the Agency designated “Riverside Co. (Coachella Valley), CA” (“Coachella Valley”) as a “Serious” nonattainment area. In 2007, the State of California requested that EPA reclassify the South Coast nonattainment area from “Severe-17” to “Extreme” and the Coachella Valley nonattainment area from “Serious” to “Severe-15” for the 1997 eight-hour ozone standard.

In response to EPA's 2003 boundary change action and California's 2007 reclassification request, the Morongo Tribe requested that EPA create a separate nonattainment area for the Morongo Reservation or, alternatively, move the western boundary of the Coachella Valley area westward to include the Morongo Reservation. See letter from Robert Martin, Chairman, Morongo Band of Mission Indians, to Deborah Jordan, Director, Air Division, EPA Region IX, dated May 29, 2009.

In 2009, in response to California's 2007 reclassification request, EPA proposed that all Indian country in the South Coast be reclassified in keeping with the classification of non-Indian country State lands to “Extreme” for the 1997 eight-hour ozone standard. See 43 FR 43654 (August 27, 2009). In 2010, EPA took final action granting the request by California to reclassify the South Coast Air Basin from “Severe-17” to “Extreme” for the 1997 eight-hour ozone standard, and to reclassify all Indian country, except that pertaining to the Morongo Tribe and the Pechanga Tribe, in keeping with the reclassification of non-Indian country State lands to “Extreme.” With respect to the Morongo Tribe and the Pechanga Tribe, EPA deferred reclassification pending EPA's final decisions on their previously-submitted boundary change requests. See 75 FR 24409 (May 5, 2010). In EPA's 2010 final rule, the Agency also granted the request to reclassify the Coachella Valley nonattainment area to “Severe-15.”

Today's proposed action would correct EPA's 2003 action to the extent that the action relates to the designations and classifications of the Morongo Reservation for the one-hour ozone standard and would establish a separate one-hour ozone nonattainment area for the Reservation. Today's proposed action would also grant the Tribe's request to revise the boundary designation and to designate the Morongo Reservation as a separate nonattainment area for the 1997 eight-hour ozone standard.8

8 If we finalize our proposed action to revise the boundaries of the South Coast to designate the Morongo Reservation as a separate nonattainment area for the 1997 eight-hour ozone standard, EPA will withdraw our proposed rule to reclassify Indian country in the South Coast to “Extreme” for the 1997 eight-hour ozone standard (74 FR 43654, August 27, 2009) to the extent that the 2009 proposed rule relates to the Morongo Reservation.

Today's proposed action would not affect the current designations and classifications of the Morongo Reservation for any of the other standards. Today's proposed action would also not affect the designations and classifications for any pollutant with respect to State lands.

II. Proposed ActionA. Legal Authority

The relevant statutory provisions for this proposed action are CAA section 110(k)(6), which is EPA's error correction authority, and CAA sections 107(d)(3), 301(a) and 301(d), which are EPA's authority to redesignate Indian country areas under these circumstances.

Section 110(k)(6) of the CAA provides: “Whenever the Administrator determines that the Administrator's action approving, disapproving, or promulgating any plan or plan revision (or part thereof), area designation, redesignation, classification, or reclassification was in error, the Administrator may in the same manner as the approval, disapproval, or promulgation revise such action as appropriate without requiring any further submission from the State. Such determination and the basis thereof shall be provided to the State and public.” We interpret this provision to authorize the Agency to make corrections to a promulgated regulation when it is shown to our satisfaction that (1) we clearly erred in failing to consider or inappropriately considering information made available to EPA at the time of the promulgation, or the information made available at the time of promulgation is subsequently demonstrated to have been clearly inadequate, and (2) other information persuasively supports a change in the regulation. See 57 FR 56762, at 56763 (November 30, 1992).

Sections 107(d)(3)(A)-(C) provide that EPA may initiate the redesignation process “on the basis of air quality data, planning and control considerations, or any other air quality-related considerations the Administrator deems appropriate,” and “promulgate the redesignation, if any, of the area or portion thereof.” CAA section 107(d)(3) does not refer to Indian country, but consistent with EPA's discretionary authority in CAA sections 301(a) and 301(d)(4) to directly administer CAA programs, and protect air quality in Indian country through federal implementation, EPA is authorized to directly administer sections 107(d)(3)(A)-(C) and redesignate Indian country areas.9

9 Revisions of designations are referred to as “redesignations.” Boundary changes revise an area's designation and, as such, represent one type of redesignation. As a general matter, EPA is no longer acting to redesignate areas with respect to the revoked one-hour ozone standard. However, in this instance, EPA is proposing to revise the designation of an air quality planning area in concert with a proposal to correct a clear error that occurred with respect to Indian country prior to revocation of the one-hour ozone standard. As indicated in this document, EPA believes that correction of this error is justified by the specific jurisdictional context and the on-going regulatory impacts on the Morongo Tribe arising from the error.

B. Proposed Correction to 2003 Action

We have reviewed the materials submitted by the State of California in connection with the State's 2002 request to enlarge the South Coast Air Basin to include the Banning Pass area, thereby removing the area from the Southeast Desert. We have also reviewed EPA's rationale for approving the State's request. On the basis of that review, and for reasons given below, EPA has concluded that while EPA's action to approve California's request was not erroneous with respect to state lands, it was erroneous with respect to the Morongo Reservation and that we have sufficient justification to correct the error at this time.

Second, from review of the record, it is clear that EPA understood its action as one in which the Agency was taking action on a State request under CAA section 107(d)(3)(D). See, e.g., the proposed rule at 48850 (“* * * we are proposing to fully approve [the requests] under CAA section 107(d)(3)(D).”). Section 107(d)(3)(D) provides: “The Governor of any State may, on the Governor's own motion, submit to the Administrator a revised designation of any area or portion thereof within the State.” Typically, however, states are not approved to administer programs under the CAA in Indian country, and California has not been approved by EPA to administer any CAA programs in Indian country. CAA actions in Indian country would thus generally be taken either by EPA, or by an eligible Indian tribe itself under an EPA-approved program. In this case, the Morongo Tribe has not applied under CAA section 301(d) for treatment-in-a-similar-manner-as-a-state (TAS) for purposes of designations and redesignations under section 107(d) and does not implement any relevant EPA-approved CAA regulatory program, nor has the tribe developed a tribal implementation plan (TIP).10 In these circumstances, EPA is the appropriate entity to administer relevant CAA programs in Indian country.

10 In addition, the CAA does not require Indian tribes to develop and seek approval of air programs, and pursuant to our authority in CAA section 301(d), EPA has interpreted relevant CAA requirements for submission of air programs as not applying to tribes. See 40 CFR 49.4.

Thus, with respect to the Indian country located within an area subject to a State boundary change request, EPA is the appropriate entity to initiate and promulgate the redesignation, and EPA could do so under CAA sections 107(d)(3)(A)-(C) and sections 301(a) and 301(d)(4), as discussed above in subsection II.A (“Legal Authority”). While EPA thus had authority to change the boundary of the South Coast Air Basin with respect to Indian country, it is apparent from the proposed and final rules in 2003 that EPA did not recognize that it was acting under that authority or appropriately consider the effect of the action on Indian country lands. EPA recognized only that the Agency was acting on a State request under section 107(d)(3)(D) and reviewed the request accordingly. As noted previously, states are not approved to administer CAA programs in Indian country.11

11 EPA is not excluding the possibility that Tribes can agree with State requests in certain circumstances, nor are we suggesting that we would undo actions we took just because we did not explicitly identify Indian country land that was included with the State land.

If EPA's actions had more explicitly addressed the fact that the State's request affected tribal lands, and also had expressly considered the Tribe's position with respect to the State's request to revise the boundary in relation to Indian country, EPA might well have relied upon the same criteria cited in the proposed rule. The criteria, set forth in section 107(d)(3)(A) include “air quality data, planning and control considerations, or any other air quality-related considerations the Administrator deems appropriate”. The evaluation of “planning and control considerations” for Indian country, however, differs from that for State lands. In this instance, with respect to State lands, the South Coast Air Quality Management District (SCAQMD) has planning and permitting responsibility over the entire Banning Pass area, as well as the South Coast, and Coachella Valley, and administers an EPA-approved (nonattainment) New Source Review (NSR) program under which permits may be issued to new or modified stationary sources.

In contrast, EPA currently administers relevant CAA programs on the Morongo Reservation. Until recently, EPA had not established a NSR program applicable to the Reservation. This means that a higher ozone classification, and simultaneous lowering (i.e., more stringent) of NSR major source thresholds, would have presented a greater challenge for new and modified stationary sources at the Morongo Reservation than for similar sources on State lands in the Banning Pass subject to SCAQMD's EPA-approved NSR program. (EPA's NSR rule for Indian country, including the Morongo Reservation, was published on July 1, 2011 at 76 FR 38748 and took effect on August 30, 2011.)

Moreover, state law and SCAQMD rules restrict the use of emission reduction credits generated under SCAQMD rules by major new or modified sources located within the South Coast Air Basin, but outside the scope of the SCAQMD program. See SCAQMD Rule 1309 (“Emission Reduction Credits”), subsection (h)(3); and California Health & Safety Code section 40709.6 (“Offset by reductions credited to stationary sources located in another district”). Given the few emissions sources on the Morongo Reservation, reliance upon emissions reductions by sources off the Reservation to offset emissions from any major new or modified sources on the Reservation is inevitable and because of the limitations in state law and SCAQMD rules, the availability of such emissions reductions is uncertain.

Therefore, as described above, in the specific circumstances presented here, and based on our review of the record from the 2003 rulemaking, we conclude that EPA erred in including the Morongo Reservation in the 2003 boundary change approval. Because Indian country was subsumed into a larger area for which the State requested a boundary revision, EPA should not have acted solely with respect to the State's request under section 107(d)(3)(D), but should have fulfilled its responsibilities pursuant to section 107(d)(3)(A)-(C), and sections 301(a) and 301(d) and considered the relevant criteria from the perspective of Indian country.

Furthermore, we recognize that the boundary change has had adverse regulatory impacts on the Morongo Tribe, particularly by lowering the one-hour ozone NSR major source threshold from 25 tons per year to 10 tons per year. This adverse regulatory impact continues to affect the Tribe, even though the one-hour ozone standard was revoked, effective on June 15, 2005 [i.e., one year from the designations for the eight-hour ozone standard—see 40 CFR 50.9(b)].

With respect to the one-hour ozone standard and the related NSR major source thresholds, the Tribe continues to be affected because, in the wake of a decision by the U.S. Court of Appeals for the DC Circuit challenging EPA's Phase I Implementation Rule for the eight-hour ozone standard,12 the NSR requirements that had applied by virtue of the area's classification as of June 15, 2004 continue to apply under anti-backsliding requirements established by EPA for the transition from the one-hour ozone standard to the eight-hour ozone standard. See 77 FR 28424 (May 14, 2012) for information concerning the NSR requirement and the anti-backsliding provisions for the former one-hour ozone standard. Thus, notwithstanding the revocation of the one-hour ozone standard, the applicable major source NSR thresholds for the Morongo Reservation continue to be 10 tons per year, based on the inclusion of the Reservation in the South Coast because the South Coast was classified as “Extreme” for the one-hour ozone standard on June 15, 2004.

12South Coast Air Quality Management District v. EPA, 472 F.3d 882 (DC Cir. 2006) reh'g denied 489 F.3d 1245 (clarifying that the vacatur was limited to the issues on which the court granted the petitions for review).

In sum, given the on-going effects that flow from our 2003 error, we are persuaded to propose action now to correct the error in our 2003 boundary change action as it relates to the Morongo Reservation.

In considering how to correct the error in our 2003 boundary change action, we have concluded from our review of the administrative record for that rulemaking that EPA did not commit an error with respect to State lands. Our proposed action addresses only the specific regulatory impact on the Morongo Reservation, and otherwise leaves the 2003 action unchanged. Thus, we propose to rescind the 2003 boundary change rule only with respect to the Morongo Reservation for the revoked one-hour ozone standard.

Revocation of the 2003 boundary change rule with respect to the Morongo Reservation would return it to its status before the 2003 boundary change, when the Reservation was included in the Southeast Desert one-hour ozone nonattainment area. (see section I.C. herein). In this action, however, EPA is taking the additional step of proposing to revise the boundaries of the Southeast Desert to designate the Morongo Reservation as a separate one-hour ozone nonattainment area. If both proposed actions are finalized, the Morongo Reservation would resume the one-hour ozone nonattainment classification it previously shared with the Southeast Desert (i.e., “Severe-17”).

We are not proposing to rescind the 2003 action with respect to area designations for any of the other standards, because the Tribe has not faced any significant adverse regulatory impacts from the boundary change with respect to those pollutants. Our proposed action would not affect any area designations or classifications with respect to State lands.

C. Proposed Boundary Redesignation of the Morongo Reservation as a Separate Nonattainment Area for the One-Hour Ozone and 1997 Eight-Hour Ozone Standards

As noted previously, on May 29, 2009, the Morongo Tribe submitted a request to EPA for a boundary change to create a separate ozone nonattainment area, or in the alternative, to move the western boundary of the Coachella Valley nonattainment area westward to include the Morongo Reservation. As noted above, we are authorized to redesignate Indian country areas under these circumstances under CAA sections 107(d)(3)(A)-(C), 301(a) and 301(d).

Recently, EPA issued a policy (referred to herein as the “Tribal Designation Policy”) for establishing separate air quality designations for areas of Indian country.13 Where EPA receives a request for a boundary change from a tribe seeking to have its Indian country designated as a separate area, the policy indicates that EPA will make decisions regarding these requests on a case-by-case basis after consultation with the tribe. As a matter of policy, EPA believes that it is important for tribes to submit the following information when requesting a boundary change: A formal request from an authorized tribal official; documentation of Indian country boundaries to which the air quality designation request applies; concurrence with EPA's intent to include the identified tribal lands in the 40 CFR part 81 table should EPA separately designate the area; and a multi-factor analysis to support the request. See Tribal Designation Policy, pages 3 and 4.

13 See memorandum from Stephen D. Page, Director, EPA Office of Air Quality Planning and Standards, to EPA Regional Air Directors, Regions I-X, dated December 20, 2011, titled “Policy for Establishing Separate Air Quality Designations for Areas of Indian Country.”

The Tribal Designation Policy states that EPA intends to make decisions regarding a tribe's request for a separate air quality designation after all necessary consultation with the tribe and, as appropriate, with the involvement of other affected entities, and after evaluating whether there is sufficient information to support such a designation. Boundary change requests for a separate air quality designation should include an analysis of a number of factors (referred to as a “multi-factor analysis,”) including air quality data, emissions-related data (including source emissions data, traffic and commuting patterns, population density and degree of urbanization), meteorology, geography/topography, and jurisdictional boundaries.14 EPA believes these factors are appropriate to consider in acting under CAA sections 107(d)(3)(A)-(C), 301(a) and 301(d).

14 The Tribal Designation Policy also states that, in addition to information related to the identified factors, tribes may submit any other information that they believe is important for EPA to consider.

On May 29, 2009, the Chairman of the Morongo Tribe submitted the Tribe's request for a separate ozone nonattainment area that included a multi-factor analysis addressing air quality data, emissions data, meteorology, geography/topography, and jurisdictional boundaries. As such, although submitted prior to release of the Tribal Designation Policy, the Morongo Tribe's request for a boundary change to create a separate ozone nonattainment area, in conjunction with EPA's additional analysis found in the technical support document for this proposed action, represents the type of formal, official request and supporting information called for in the policy.15

15 In addition, EPA has consulted with the tribe several times about this matter.

EPA recently reviewed the Morongo Tribe's multi-factor analysis in connection with designating areas of the country for the 2008 ozone standard. Upon review of the Tribe's analysis and EPA's own supplemental analysis in light of the Tribal Designation Policy, EPA designated the Morongo Reservation as a separate nonattainment area for the 2008 ozone standard. See 77 FR 30088 (May 21, 2012). We believe that EPA's analysis and recent decision to designate the Morongo Reservation as a separate nonattainment area for the 2008 ozone standard is directly relevant to our consideration of whether to revise the boundaries of existing air quality planning areas to designate the Morongo Reservation as a separate nonattainment area for the one-hour and 1997 eight-hour ozone standards. We recognize that the three standards address the same pollutant, and thus share multi-factor analyses and considerations.16

16 EPA also notes that in using many of the same factors found in the 2008 ozone designations process, we are using factors that represent the most current information regarding meteorology, air quality, etc. in the area and therefore we believe serve the purposes of being representative for the previously established ozone standards.

EPA is therefore adopting the analysis and rationale previously relied upon by EPA in establishing the Morongo nonattainment area for the 2008 ozone standard. Key findings from the 2008 ozone designations decision that we are adopting for this proposed action include: 17

17 See the TSD associated with this proposal for our detailed analysis of each of the factors. Our TSD also shows that violations continue for the one-hour standard and that the transitional characteristic observed for the eight-hour ozone data also applies to the one-hour ozone data.

• Air quality data: The SCAQMD-run monitor in Banning is located within two miles of the Morongo monitor, and data from SCAQMD's Banning monitor is appropriate for use as a regulatory monitor and is representative of air quality within the Morongo Reservation. Eight-hour ozone concentrations measured at the SCAQMD-run Banning ozone monitor shows continued violations of the 1997 eight-hour ozone standard and, reflecting the transitional nature of the Banning Pass area, contrast with the higher design values of the South Coast Air Basin to the west and lower design values in Southeast Desert to the east; 18

18 In performing our analysis, EPA relied on data from the following monitoring stations in our air quality system (AQS): Redlands (AQS #06-071-4003), Banning (AQS #06-065-0012), and Palm Springs (AQS #06-065-5001). EPA believes that the Banning monitor, given its proximity, is representative of the Morongo Indian Country's air quality. EPA also notes that, while the Morongo Tribe operates its own monitor, we did not use that data for this action.

• Emissions data: Sources of air pollutants located on or associated with the Morongo Reservation consist of stationary sources that generate less than 20 tons per year (tpy) of NOX and less than 20 tpy of VOC, and motor vehicles for travel associated with the 1,500 residents and visitors to the Morongo Casino Resort. In contrast, ozone precursor emissions from the adjacent Los Angeles-South Coast Air Basin nonattainment area exceed 400,000 tpy of NOX and over 200,000 tpy of VOC, with a total population of approximately 17 million people.19 To the east, ozone precursor emissions from the adjacent Riverside County (Coachella Valley, which was originally part of the Southeast Desert Air Basin) nonattainment area exceed 50,000 tpy of NOX and 28,000 tpy of VOC, with a population of over 2 million people; 20

19 See page 5 of the Morongo portion of the 2008 eight-hour ozone standard TSD found at http://www.epa.gov/groundlevelozone/designations/2008standards/documents/R9_CA_TSD_FINAL.pdf

20 See page 6 of the Morongo portion of the 2008 eight-hour ozone standard TSD found at http://www.epa.gov/groundlevelozone/designations/2008standards/documents/R9_CA_TSD_FINAL.pdf

• Meteorology: Under most meteorological conditions, air from the coastal plain (i.e., South Coast) to the west is funneled through Banning Pass to the desert area to the east. As a mountain pass area, the meteorology is dissimilar from that of either the coastal plain to the west or the desert area to the east. The winds are more frequent and stronger, with a more westerly component, than those in most of the coastal plain, and the temperatures vary more than in most of the coastal plain but not as much as in the desert area to the east.21 Thus, in some ways, the Banning Pass is transitional between the coastal and desert areas; in other ways, as a mountain pass, the Banning Pass is simply unlike either area to the west or east;

21 Meteorological information for the Morongo Reservation is from 2005-2009 Weather and Air Quality Summary, prepared by the Morongo Band of Mission Indians, Environmental Protection Department, Tribal Air Program, August 2010.

• Geography/topography: The topographical characteristics of the Banning Pass create very different climatic conditions than found in the coastal plain to the west or the desert area to the east, such as persistently strong westerly air flow that is compressed and channeled by the elevated land mass of the Pass itself and the steep mountain peaks to the north and south; and

• Jurisdictional boundaries: Although the Morongo Reservation contains stationary and mobile sources of ozone precursors, the magnitude of ozone precursor emissions is very small compared to emissions from the adjacent Los Angeles-South Coast Air Basin and Coachella Valley nonattainment areas. Because the analysis of factors does not conclusively indicate that the sources located on the Morongo Reservation contribute to nonattainment in the surrounding area, EPA believes that consistent with the principles set forth in the Tribal Designation Policy, the jurisdictional boundaries factor is especially important in the decision-making process for designating the Morongo Reservation.

Air quality data, meteorology and topography indicate that the Morongo Reservation experiences transitional conditions characteristic of a mountain pass area through which pollutants are channeled from a highly urbanized metropolitan nonattainment area to the west to the relatively less developed nonattainment area to the east. Considering the three factors of air quality data, meteorology, and topography, EPA could reasonably include the Morongo Reservation in either the South Coast nonattainment area to the west, or the Southeast Desert nonattainment area to the east, as EPA has done in the past for the one-hour ozone standard and the 1997 eight-hour ozone standard. Alternatively, the Agency could establish a separate nonattainment area for the Morongo Reservation as it did for the 2008 eight-hour ozone standard.22

22 See 77 FR 30088, dated May 21, 2012.

However, taking into account the minimal amount of emissions associated with activities on the Morongo Reservation and corresponding minimal contribution to regional ozone violations, we believe that in these circumstances it is appropriate to assign particular weight to the jurisdictional boundaries factor, and it is consistent with the principles for designations of Indian country set forth in the Tribal Designation Policy. Moreover, the Tribe has invested in the development of its own air program, including operation of weather stations and an air monitoring station, and has expressed interest in development of its own permitting program. Under the jurisdictional boundaries factor, we find that redesignation of the Morongo Reservation as a separate ozone nonattainment area for the one-hour ozone and 1997 eight-hour ozone standards would be appropriate. Therefore, consistent with the designation of the Morongo Reservation for the 2008 ozone standard, we propose to revise the boundaries of the Southeast Desert one-hour ozone nonattainment area and the boundaries of the South Coast 1997 eight-hour ozone nonattainment area to designate the Morongo Reservation as a separate nonattainment area for the one-hour and 1997 eight-hour ozone standards.

III. Summary of Proposed Action and Request for Public Comment

Under section 110(k)(6) of the CAA, EPA is proposing to correct an error in a 2003 final action that revised the boundaries between areas in Southern California established under the CAA for the purposes of addressing the standard for one-hour ozone. EPA has determined that the Agency erred in the 2003 final action to change the boundary of the South Coast Air Basin, which enlarged the basin to include all of the Banning Pass area. In taking that action, EPA failed to consider the presence of Indian country (i.e., the Morongo Reservation) located therein. EPA thus failed to consider the status of the Indian country under the appropriate statutory and regulatory provisions when it evaluated and acted upon the State's boundary change request. EPA believes that its error resulted in regulatory consequences for the Morongo Tribe that justify making a correction.

Specifically, EPA is proposing to rescind the 2003 final action, as it pertains to the Morongo Reservation for the one-hour ozone standard. This proposed action would not affect the designations and classifications of State lands.

Second, under CAA section 107(d)(3), 301(a) and 301(d), we propose to revise the boundaries of the Southeast Desert to designate the Morongo Reservation as a separate nonattainment area for the one-hour ozone standard and to classify the Morongo Reservation as “Severe-17,” i.e., consistent with its prior classification when it was included in the Southeast Desert. Third, also under CAA section 107(d)(3), 301(a) and 301(d), we are proposing to revise the boundaries of the South Coast to designate the Morongo Reservation as a separate nonattainment area for the 1997 eight-hour ozone standard and to classify the Morongo Reservation as “Severe-17,” i.e., consistent with its original classification when it was included in the South Coast.

We are proposing to redesignate the Morongo Reservation as a separate air quality planning area for the one-hour ozone and 1997 eight-hour ozone standards based on our conclusion that factors such as air quality data, meteorology, and topography do not definitively support inclusion of the Reservation in either the South Coast or the Southeast Desert air quality planning areas, that Morongo Reservation emissions sources contribute minimally to regional ozone concentrations, and that the jurisdictional boundaries factor should be given particular weight under these circumstances.

If finalized as proposed, the Morongo air quality planning area for the one-hour and 1997 eight-hour ozone standards would have the same boundaries as the Morongo nonattainment area for the 2008 eight-hour ozone standard. Moreover, if finalized as proposed, new or modified stationary sources proposed for construction on the Morongo Reservation would be subject to the NSR major source thresholds for “Severe-17” ozone nonattainment areas, rather than the more stringent thresholds for “Extreme” ozone nonattainment areas.

EPA is soliciting public comments on the issues discussed in this document and will accept comments for the next 30 days. These comments will be considered before taking final action.

IV. Statutory and Executive Order ReviewsA. Executive Order 12866: Regulatory Planning and Review

Under Executive Order 12866 [58 FR 51735 (October 4, 1993)], the Agency must determine whether the regulatory action is “significant” and therefore subject to OMB review and the requirements of the Executive Order. The Order defines “significant regulatory action” as one that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this proposed action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This proposed action would merely correct an error in a previous rulemaking and redesignate certain air quality planning area boundaries, and thereby reinstate certain CAA designations and corresponding requirements to which the affected area had previously been subject.

B. Paperwork Reduction Act

This proposed action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. This proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act (RFA)

The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that this rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. After considering the economic impacts of today's rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This proposed rule will not impose any direct requirements on small entities. EPA is proposing to correct an error in a previous rulemaking and redesignate certain air quality planning area boundaries, and thereby reinstate certain CAA designations and corresponding requirements to which the affected area had previously been subject. This proposed action is intended to, among other purposes, facilitate and support the Morongo Tribe's efforts to develop a tribal air permit program by re-establishing, within the Morongo Reservation, the less-stringent New Source Review major source thresholds that had applied under the area's previous “Severe-17” classification for the one-hour ozone standard.

D. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. Today's proposed rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, or tribal governments or the private sector. The proposed rule imposes no enforceable duty on any State, local or tribal governments or the private sector. In any event, EPA has determined that this proposed rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. Thus, today's proposed rule is not subject to the requirements of sections 202 and 205 of the UMRA.

E. Executive Order 13132: Federalism

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This proposed action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This proposed action would merely correct an error in a previous rulemaking and redesignate certain air quality planning area boundaries, and thereby reinstate certain CAA designations and corresponding requirements to which the affected area had previously been subject, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act.

F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” are defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.” Under section 5(b) of Executive Order 13175, EPA may not issue a regulation that has tribal implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by tribal governments, or EPA consults with tribal officials early in the process of developing the proposed regulation. Under section 5(c) of Executive Order 13175, EPA may not issue a regulation that has tribal implications and that preempts tribal law, unless the Agency consults with tribal officials early in the process of developing the proposed regulation.

EPA has concluded that this action would have tribal implications. In 2009, the Morongo Tribe requested that EPA create a separate area for the Morongo Reservation in part due to the adverse regulatory impacts resulting from the Agency's 2003 boundary change action. EPA consulted with representatives of the Morongo Tribe prior to, and following, the Tribe's 2009 boundary change request, concerning the issues covered herein. In today's proposed action, EPA is responding to the Tribe's 2009 boundary change request and has proposed an action that would eliminate the adverse regulatory impacts arising from EPA's 2003 boundary change action. As described herein, we agree with the Tribe that the boundary should be corrected to reflect their concerns. As proposed, this action will neither impose substantial direct compliance costs on tribal governments, nor preempt tribal law. Rather, the proposed action would relieve the Tribe of the additional requirements that flowed from the boundary change and corresponding change in CAA designations and classifications. Thus, the requirements of sections 5(b) and 5(c) of the Executive Order do not apply to this rule.

G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks

Executive Order 13045: “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This proposed rule is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant as defined in Executive Order 12866, and because the Agency does not have reason to believe the environmental health or safety risks addressed by this rule present a disproportionate risk to children.

H. National Technology Transfer Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This proposed rule does not involve establishment of technical standards, and thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply to this action.

Executive Order 12898 (59 FR 7629 (February 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.

EPA has determined that this proposed action will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not directly affect the level of protection provided to human health or the environment. In this action, EPA is proposing to correct an error in a previous rulemaking and redesignate certain air quality planning area boundaries, and thereby reinstate certain CAA designations and corresponding requirements to which the affected area had previously been subject.

We, the U.S. Fish and Wildlife Service (Service), propose to list as endangered the Honduran emerald hummingbird (Amazilia luciae) under the Endangered Species Act of 1973, as amended (Act). This species is endemic to a small area in Honduras, and the population is estimated to be less than 1,000 and decreasing. Its suitable habitat has decreased in the past 100 years and continues to diminish. This document also serves as the completion of the status review (also known as the 12-month finding). We seek information from the public on the proposed listing for this species.

DATES:

We will consider comments and information received or postmarked on or before March 4, 2013.

We will not accept comments by email or fax. We will post all comments on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see the Information Requested section below for more information).

FOR FURTHER INFORMATION CONTACT:

Janine Van Norman, Chief, Branch of Foreign Species, Endangered Species Program, U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, Room 420, Arlington, VA 22203; telephone 703-358-2171. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.

Background

Section 4(b)(3)(B) of the Endangered Species Act (ESA) (16 U.S.C. 1531 et seq.) requires that, for any petition to revise the Federal Lists of Endangered and Threatened Wildlife and Plants that contains substantial scientific or commercial information that listing the species may be warranted, we make a finding within 12 months of the date of receipt of the petition (“12-month finding”). In this finding, we determine whether the petitioned action is: (a) Not warranted, (b) warranted, or (c) warranted, but immediate proposal of a regulation implementing the petitioned action is precluded by other pending proposals to determine whether species are endangered or threatened, and expeditious progress is being made to add or remove qualified species from the Federal Lists of Endangered and Threatened Wildlife and Plants. Section 4(b)(3)(C) of the ESA requires that we treat a petition for which the requested action is found to be warranted but precluded as though resubmitted on the date of such finding, that is, requiring a subsequent finding to be made within 12 months. We must publish these 12-month findings in the Federal Register.

In this document, we announce that listing this species as endangered is warranted, and we are issuing a proposed rule to add this species as endangered to the Federal List of Endangered and Threatened Wildlife. Prior to issuing a final rule on this proposed action, we will take into consideration all comments and any additional information we receive. Such information may lead to a final rule that differs from this proposal. All comments and recommendations, including names and addresses of commenters, will become part of the administrative record.

Petition History

On October 28, 2008, the Service received a petition dated October 28, 2008, from Mr. David Anderson of Louisiana State University on behalf of The Hummingbird Society of Sedona, Arizona; The Hummingbird Conservancy of Butte, Montana; Clos LaChance of San Martin, California; Honduran Environmental Network for Sustainable Development of La Ceiba, Honduras; Fundación Parque Nacional Pico Bonito of La Ceiba, Honduras; EcoLogic Development Fund of Cambridge, Massachusetts; and Crowell and Moring, LLP of the District of Columbia, requesting that we list the Honduran emerald hummingbird as endangered under the Act. The petition clearly identified itself as a petition and included the requisite identification information required at 50 CFR 424.14(a). In response to the petitioners' request, we sent a letter to Mr. Anderson dated December 5, 2008 acknowledging receipt of the petition. The petition also included a letter from the Honduras Ambassador, Roberto Flores Bermudez, to Secretary Salazar, dated January 23, 2009, in support of this petition. We also received subsequent letters supporting the petition to list this species from the Francis Lewis High School Key Club on February 12, 2009, the Lehman College Key Club on February 26, 2009, and the Ecologic Development Fund on April 8, 2009.

Previous Federal Actions

On June 23, 2010, we published a 90-day finding (75 FR 35746) on the petition announcing that we would initiate a status review to determine if listing this species is warranted. This proposed listing determination constitutes our 12-month finding on the petition to list this species as endangered.

Peer Review

We are seeking comments from independent species experts to ensure that our listing proposal is based on scientifically sound data, assumptions, and analyses. We have invited these peer reviewers to comment on our specific assumptions and conclusions in this listing proposal. Because we will consider all comments and information received during the comment period, our final determination may differ from this proposal.

Information Requested

We intend that any final actions resulting from this proposed rule will be based on the best scientific and commercial data available. Therefore, we request comments or information from the Government of Honduras, the scientific community, or any other interested parties concerning this proposed rule. We particularly seek clarifying information concerning:

(1) Information on the species' taxonomy, distribution, habitat selection (especially breeding and foraging habitats), diet, and population abundance and trends (especially current recruitment data) of this species.

(2) Information on the effects of habitat loss and changing land uses on the distribution and abundance of this species and its principal food sources over the short and long term.

(3) Information on whether changing climatic conditions (i.e., increasing intensity of hurricanes or drought) are affecting the species, its habitat, or its food sources.

(4) Information on the effects of other potential factors, including live capture and collection, domestic and international trade, predation by other animals, and diseases of this species or its principal food sources over the short and long term.

(5) Information on management programs for hummingbird conservation, including mitigation measures related to conservation programs, and any other private or governmental conservation programs that benefit this species.

(6) Genetics and taxonomy.

(7) The factors that are the basis for making a listing determination for a species under section 4(a) of the Act (16 U.S.C. 1531 et seq.), which are:

(a) The present or threatened destruction, modification, or curtailment of its habitat or range;

(e) Other natural or manmade factors affecting its continued existence.

Please include sufficient information with your submission (such as full references) to allow us to verify any scientific or commercial information you include. Submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination. Section 4(b)(1)(A) of the ESA directs that determinations as to whether any species is an endangered or threatened species must be made “solely on the basis of the best scientific and commercial data available.”

Public Hearing

At this time, we do not have a public hearing scheduled for this proposed rule. The main purpose of most public hearings is to obtain public testimony or comment. In most cases, it is sufficient to submit comments through the Federal eRulemaking Portal, described above in the ADDRESSES section. If you would like to request a public hearing for this proposed rule, you must submit your request, in writing, to the person listed in the FOR FURTHER INFORMATION CONTACT section by February 19, 2013.

Species InformationTaxonomy

This species was first taxonomically described by Lawrence in 1867 and placed in the Trochilidae family as Amazilia luciae (UNEP-WCMC 2009a, p. 1). Common names for the species include Honduran emerald hummingbird, Ariane De Lucy (French), and colibrí esmeralda Hondureña (Spanish). The Honduran emerald hummingbird is also known by the synonyms Polyerata luciae and Thaumatias luciae (Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)). BirdLife International (BLI) and CITES both recognize the species as Amazilia luciae (BLI 2008, p. 1). Therefore, we accept the species as Amazilia luciae, which also follows the Integrated Taxonomic Information System (ITIS 2009). ITIS is a database maintained by a partnership of U.S., Canadian, and Mexican federal government agencies, other organizations, and taxonomic specialists to provide taxonomic information.

Description

The Honduran emerald hummingbird is in the family Trochilidae (BLI 2008, p. 1; Sibley and Monroe 1993, 1990). The species is a medium-sized hummingbird with an average length of 9.5 centimeters (3.7 inches) (BLI 2008, p. 2). There are more than 325 hummingbird species and they exhibit a wide range of flight-related morphology and behavior, based on ecological factors (Altshuler and Dudley 2002, p. 2,325). As do all hummingbirds, the Honduran emerald hummingbird exhibits slight sexual dimorphism, which is demonstrated in the coloring of its plumage. The male has an iridescent blue-green throat and upper chest and occasionally has a grey mottled coloring. Its back is an emerald green color, the ventral (underneath) side of the bird is pale grey with mottled green sides, and the tail is bright green with a bronze hint on the upper tail coverts (BLI 2008, p. 1). The bill is black with a red mandible and dark tip, and has a slightly longer, more decurved (downward curving) bill than the closely related species A. candida (Monroe 1968, p. 182). The plumage of the female is less brilliant (BLI 2008, p. 2). The tail of the female contains a grey tip, and the band of distinctive color on the throat of the female hummingbird is narrower, with pale edges (BLI 2008, p. 2; Monroe 1968, p. 183). Juveniles have grayish throats spotted with turquoise (BLI 2008, p. 2).

Biology

Limited information is available on the Honduran emerald hummingbird's behavior and life history (Anderson 2010, p. 2). In 1988, a bird was observed defending a territory of 10 m2 (108 ft2), suggesting that the species may be territorial (Collar et al. 1992, p. 493; Howell and Webb 1989, p. 643), as are many hummingbird species. This species has been observed feeding at heights between 0.5 to 10 m (2 to 32 ft) (Howell and Webb 1989, p. 643).

As with all hummingbird species, the Honduran emerald relies on nectar-producing flowers for food, but also relies on insects and spiders as sources of protein (BLI 2008, p. 3; Collar et al. 1992, p. 494). Hummingbirds are known to “disperse” rather than “migrate” in the sense that they do not follow routine, standard, round-trip movements; they follow sources of food availability (Berthold et al. 2003, pp. 40-41).

Population

Between 1988 and 1996 there was a notable decrease in reported occurrences of Honduran emerald hummingbirds (Portillo 2007, p. 48; Collar et al. 1992, p. 494; Stattersfield and Capper 2000, p. 311). In 1988, the species was known to be common in Olanchito and Coyoles (BLI 2000, p. 311). In 1991, BirdLife International reported that between 22 and 28 individuals were found in 2.5 km2 (618 ac) of habitat in Olanchito (See Figure 1 for a map of the region.). In 1996, the Honduran emerald hummingbird was found in less than 1 km2 (247 ac) of habitat in the Agalta valley (Olancho Department), northeast of Gualaco (Stattersfield and Capper 2000, p. 311).

In 2007, the total population was estimated to be between 200 and 1,000 individuals (Anderson et al. 2007, p. 1). As of 2012, BLI estimated that the population is between 43 and 999 birds with a decreasing trend (citation p. 1). In the Yoro Department, several attempts have been made to conduct a census of the Honduran emerald hummingbird population. The best estimate by local biologists suggests that in the protected area the population is approximately 250 individuals (Perez and Thorn pers. comm. 2012).

Historic Distribution

The Honduran emerald hummingbird is the only known endemic bird species in Honduras (Anderson and Devenish 2009, p. 258; Portillo 2007, p. 17; Thorn et al. 2000, p. 3; Collar et al. 1992, p. 493; Monroe 1968, p. 182). Based on specimen data, the species (Amazilia luciae) was originally known to occur in four departments (which are similar to “States” in the United States): Cortés and Santa Barbara in the west and Yoro and Olancho in the northeast (see Figure 1). The historical locations where this species has been documented, along with the date it was documented, are below.

Between 1950 and 1988, there were no recorded observations of the Honduran emerald hummingbird. In 1988, the species was described as common in Olanchito and Coyoles, which are located 16 kilometers (km) (9 miles (mi)) apart (BLI 2008, p. 2). In 1991, between 22 and 28 individuals were found in a patch of habitat measuring 500 by 50 meters (m) (1,640 × 164 feet (ft)) near Olanchito (Howell and Webb 1992, pp. 46-47). In 1996, the bird was found in the Agalta Valley on less than 1 km2 (247 acres (ac) or .39 mi2) of suitable habitat (BLI 2008, p. 3).

Current Distribution

Between 2007 and 2008, this species was detected in five valleys of Honduras (See Figure 1; Anderson 2010, p. 4). The Honduran emerald hummingbird has been rediscovered in western Honduras in two valleys in the Santa Barbara Department: the Quimistán Valley (in the Río Chamelecón watershed) and Tencoa Valley (Río Ulúa watershed), where it had not been recorded since 1935. Until its rediscovery, it was thought that habitat loss had restricted the species to isolated patches of arid thorn-forest and scrub of the interior valleys of northern Honduras. In the Tencoa Valley, researchers found individuals in five fragments, each separated by at least 5 km (3 mi). These fragments were between 5 and 60 ha (12 and 148 ac) each. We estimate that the population in the Santa Barbara Department is approximately 200 km (124 mi) west of the nearest known population in the Aguán Valley (Anderson 2010, p. 5). Searches in Cortés were unsuccessful at locating this species (Anderson 2008; Petition 2008). It is unclear if the western and eastern populations of this species are interbreeding (Anderson 2010, p. 5). BLI estimates that its range is 400 km2 (154 mi2). However, local experts believe its actual extent of occurrence is closer to 150 km2 (58 mi2) (Perez and Thorn pers. comm. 2012). Even with the rediscovery of the species in Santa Barbara and the extension of its range in Olancho, the species' habitat has been reduced (See Figure 1; Perez and Thorn pers. comm. 2012).

This species tends to be found generally along the same latitude. This phenomenon is not surprising; it is supported by research conducted by Tingley et al. in 2009, which found that 90.6 percent of bird species in this study tracked their Grinnellian niche (pp. 19,637, 19,640), which is a niche driven by factors such as climate, latitude, and elevation. The Honduran emerald hummingbird is found in habitat that appears to contain similar ecological conditions such as rainfall, humidity, types of species, and temperature. This hummingbird species is well known in the Aguán Valley, Yoro Department, in the areas of Olanchito and Coyoles, and is reported as relatively common, but only within its remaining native habitat (Gallardo 2010, p. 186; Thorn et al. 2000, pp. 22-23). Recently it was observed in San Esteban in the Agalta Valley and in the Telica Valley, both in the Olancho Department (Anderson and Hyman 2007, p. 6). However, aspects of this species' behavior are unclear, such as how far individuals disperse, what habitats are important for dispersal, and how the populations are linked genetically (Perez and Thorn 2012 pers. comm.; Anderson et al. 2010, p. 7).

Agalta Valley

The Agalta Valley is a remote region in the mountains of eastern Honduras containing over 1,000,000 hectares (2,471,054 ac) of land characterized as dry basin. Here, the Honduran emerald's habitat primarily is on large, privately owned cattle ranches that have restricted access (Anderson et al. 2010, p. 3). The species has been known to occur in this valley since the mid-1990s (Anderson et al. 1998, p. 181).

Aguán Valley

The Honduran emerald's habitat formerly encompassed a large extent of the Aguán Valley, a once pristine plain of nearly 4,662 km2 (1,800 mi2). Ninety percent of its original habitat no longer exists in its original form due to the conversion of its habitat to banana plantations and cattle pasture. Much of the Honduran emerald species' habitat is on privately-owned land and is often planted with non-native grasses for cattle foraging (Perez and Thorn 2012, pers. comm.; Anderson pers. comm. 2008 in Petition 2008, p. 11). In some cases, it is even planted with invasive grass species (http://www.birdlist.org/cam/honduras/hn_ecosystems.htm, accessed May 22, 2012). Today, due to decades of unregulated and expanding cattle ranching, the hummingbird's dry forest range is limited to a few small, isolated islands of habitat. Its increasingly smaller ecosystems are surrounded by human-dominated landscapes. One estimate indicated that between 2,428 and 3,237 ha (6,000-8,000 acres) of suitable habitat remains in the Aguán Valley, most of which is privately owned (Gallardo 2010, p. 186); however, other estimates indicate that the species has even less suitable habitat available than the above estimate (Perez and Thorn 2012 pers. comm.). Efforts by Pico Bonito National Park Foundation (Fundación Parque Nacional Pico Bonito (FUPNAPIB) and others have succeeded in preserving important parts of the bird's habitat, however, even the area designated as protected is experiencing habitat degradation.

The Aguán River Valley is one of the last remaining areas that contains suitable and optimal habitat for the Honduran emerald hummingbird (Anderson and Hyman 2007, pp. 1-4). The lands along the Aguán River have periodically been devastated by banana diseases, floods, and hurricanes, particularly Hurricane Fifi in 1974 and Hurricane Mitch in 1998 (NOAA 2012, p. 2; Winograd 2006; USGS 2002, p. 5). This valley is on the south side of the Nombre de Dios mountain range, primarily in the Yoro Department (Gallardo 2010, p. 185). The Aguán River Watershed is 10,546 km2 (4,072 mi2 or 2,605,973 acres), is delimited by the tributaries of the Aguán River, and extends across the departments of Yoro, Colon, Atlántida, and Olancho (WWF 2008, p. 12, See Map 5, Map of Honduras, Aguán Valley at http://www.regulations.gov, docket no. FWS-R9-ES-2009-0094, Supporting Maps). This valley experiences a unique microclimate in which most of the rain falls between June to November (Gallardo 2010, p. 185). The land in the Aguán Valley is rich, fertile, and highly coveted, particularly in a country with a high poverty index that relies strongly on its land for agriculture (WWF 2008, p. 2).

In the last approximately 100 years, the Aguán region has experienced three periods of agricultural economic growth (WWF 2008, p. 11). Thorn forests were initially cleared in the Aguán Valley to create banana and plantain plantations and rice farms, as well as pasture for cattle (Stattersfield and Capper 2000, p. 311). However, after an outbreak of Panama disease occurred in bananas, the Aguán Valley was largely abandoned, and much of the land reverted to pasture or forest. As a result of the agricultural reforms of the 1960's and 1970's, Honduran campesinos (farmers) received farmland in the Aguán Valley and proceeded to clear and develop the Valley that was previously forested into an agricultural region. In the late 1970s, lands were again cultivated with disease-resistant varieties of bananas. Now, only a single forest remnant larger than 100 ha (247 ac) that is suitable for this species is known to exist in this Valley (Anderson 2010, p. 6).

Western Honduras

Sites occupied by the Honduran emerald in western Honduras are best described as semi-deciduous woodland, a habitat that has not previously been associated with the species. When hummingbirds do not find suitable available habitat, research indicates that they tend to abandon a territory and move to more productive patches (Feinsinger and Colwell 1978; Kodric-Brown and Brown 1978 in Justino et al. 2012, p. 194). Canopy height in this area averages 15 m (49 ft), dominated by semi-deciduous broad-leaved tree species, principally Eugenia oerstediana, Bursera simaruba, and Tabebuia rosea, that form a relatively closed tree canopy. Common understory species are Agave parvidentata, Tillandsia fasciculata,Bromelia pinguin, Bromelia plumieri, and Acanthocereus pentagonus (Anderson 2010, p. 5).

The Honduran emerald hummingbird prefers arid interior valleys of thorn forest and shrub. The Aguán River Valley area rarely receives more than 76 cm (30 inches) of rain per year (Perez and Thorn 2012, pers. comm.; Gallardo 2010, www.birdsofhonduras.com). Due to the arid climate, many of the plant species are adapted to retain water and are succulents or contain spines as protection from herbivores. Many of the plants lose all their leaves in the dry season, and Honduran emerald habitat may appear almost lifeless. Typical plants within its habitat are cacti, acacias, and other succulents. In Honduras, this habitat occurs primarily along the gulf of Fonseca, in the Agalta Valley in the Olancho Department, and the Aguán Valley in the Yoro Department. Most of the hummingbird's occurrences have been noted at elevations below 410 m (1,345 ft); however, one occurrence was recorded at 1,220 m (4,003 ft) (BLI 2008, p. 3; et al. 1994, p. 119; Collar et al. 1992, p. 494).

In the Coyoles area in the Aguán Valley, the thorn forest is primarily comprised of Mimosaceae (herbaceous and woody species), Cactaceae (cactus species), and Euphorbiaceae (herbs, shrubs, trees, and some succulent species) (Collar et al. 1992, p. 494). Thorn et al. (2000, p. 23) observed that habitat with abundant flowers, red in particular, appear to be a critical characteristic for suitable habitat. A list of plant species associated with Honduran emerald hummingbird habitat is below, as well as a key that indicates whether the plant is (1) commonly found in its habitat, (2) associated with feeding or nesting, (3) a cactus or orchid species, and (4) found in Western Honduras (Anderson 2010, p. 5; Anderson 2009, p. 235; House 2004, pp. 14-16; Thorn et al. 2000).

In Yoro (see Figure 1), the Honduran emerald hummingbird visited the species Pedilanthus camporum, which produces flowers year-round, and Nopalea hondurensis, which flowers generally between February and April, 90 percent of the time observed. In western Honduras, 90 percent of foraging observations were on Aphelandra scabra and Helicteres guazaumifolia.

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Three species of arborescent (tree-like) cacti have been associated with the Honduran emerald habitat: Pilosocereus maxoni, Stenocereus yunckeri (endemic), and Opuntia hondurensis (endemic) (House 2004, p. 15). The trees and shrubs found in one study of its habitat were almost 100 percent deciduous (House 2004, p. 15). Although epiphytes are usually rare in this habitat type, some epiphytes are well adapted to the extremes of this environment. Large clusters of three species of orchids: Myrmecophila wendlandii, Laelia rubescens, and Encyclia nematocaulon were found on some cacti (House 2004, p. 16). In larger, more mature trees, some bromeliads were found. The flowering of Opuntia hondurensis coincides with the nesting period of the Honduran emerald (House 2004, p. 23).

Conservation Status

The Honduran emerald hummingbird is listed as endangered by the IUCN (2012). This species was downlisted to endangered from critically endangered following its recent discovery in the western part of Honduras, which increased its known range (BLI 2012, pp. 1-2). Its IUCN classification is based on its very small and severely fragmented range and population. However, this status under IUCN conveys no actual protections to the species. The Honduran emerald hummingbird has been listed in Appendix II of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) since October 22, 1987, at which time all hummingbird species not previously listed in the Appendices were listed in Appendix II. CITES controls international trade in animal and plant species affected by trade. Appendix II includes species that are not necessarily threatened with extinction, but may become so unless trade is subject to strict regulation to avoid utilization incompatible with the species' survival. International trade in specimens of Appendix II species is authorized through a system of permits or certificates under certain circumstances. CITES, of which Honduras is a Party, is an international agreement through which member countries, called Parties, work together to ensure that the international trade in CITES-listed animals and plants is not detrimental to the survival of wild populations by regulating their import, export, and reexport. This process includes verification that (1) trade will not be detrimental to the survival of the species in the wild, and (2) that the material was legally acquired (www.cites.org).

Factors Affecting the SpeciesIntroduction

The factors affecting the Honduran emerald hummingbird's habitat are interrelated. A species may be affected by more than one factor acting in combination with other factors. In some cases, it is not necessarily easy to determine which factor is negatively affecting a species. The most obvious factor that affects this species is a significant loss of habitat (90 percent) over the past approximately 100 years due to land conversion to plantations, agriculture, and cattle pastures (Perez and Thorn 2012, pers. comm.). This loss of habitat interacts with other factors in affecting the Honduran emerald hummingbird's habitat, and these factors are discussed in detail below.

Habitat Loss

The country has been steadily losing thorn forest cover, particularly since the early 1960s, often due to the conversion of thorn forest areas to cattle pastures and plantation agriculture such as banana and oil palm plantations (World Wildlife Fund [WWF] 2008, p. 11; Anderson pers. comm. 2008 in Petition 2008, p. 11; Portillo 2007, p. 75). In the Aguán Valley, as of 2000, this species' suitable habitat had reduced in size to an estimated 8,495 hectares (ha) (20,092 ac) from 16,000 ha (39,537 ac) in 1977 and 30,000 ha (74,132 ac) in 1938 (See Table 1; Thorn et al. 2000, p. 25).

The carrying capacity of suitable habitat that remains for this species is unknown. In other words, it is unclear how many hummingbirds the remaining suitable habitat can maintain. Nectar is the primary source of carbohydrates for hummingbirds, and pollen is the primary source of protein for hummingbirds (Araújo et al. 2011, p. 827; Hegland et al. 2009, p. 188). Although studies of nutritional requirements have been conducted with respect to other hummingbird species, the home range required to support the breeding, feeding, and nesting requirements for each pair of Honduran emerald hummingbirds is unclear.

In 2000, a survey was conducted for the Honduran emerald hummingbird which found that it occurs in dry tropical forest (Anderson and Hyman 2007, pp. 1-4; Thorn et al. 2000, pp. 1-5). However, the species has recently been discovered in Western Honduras in an area with different ecological characteristics (see habitat description above), where it had not been recorded since 1935 (Anderson et al. 2010, p. 1). It is unclear whether this species is moving westward in reaction to loss of habitat in eastern Honduras; some species of hummingbirds will make these types of moves in search of new habitat (Justino et al. 2012, pp. 194-195).

Conversion of this species' habitat to coffee, bean, and corn plantations has occurred in many areas, particularly in the Santa Barbara Department (See Figure 1; Perez and Thorn 2012, pers. comm.). In the Aguán Valley, 10,319 ha (25,500 acres) now consist of banana plantations in an area known as the Barisma farm (Dole 2011, p. 67). Habitat suitable for Honduran emerald hummingbirds continues to be cleared by private landowners in order to plant pasture grass for grazing cattle (Hyman 2012 pers. comm.). In the Yoro Department, there are only four large patches of suitable habitat for this species remaining (Perez and Thorn 2012, pers. comm.; Anderson 2010.). The four largest fragments are between 360 and 476 ha (890 and 1,176 ac), for a combined total of 1,704 ha (Anderson 2010, p. 6).

Several hummingbird species have persisted in fragmented tropical landscapes (Stouffer & Bierregaard 1995 in Hadley and Betts 2009, p. 207). However, hummingbird persistence at the landscape scale does not indicate that the population is at the same level it was prior to deforestation (Hadley and Betts 2009, p. 207). Flight paths used by another hummingbird species to travel between suitable habitats indicate that gaps in suitable habitat alter hummingbird movement pathways (Hadley and Betts 2009, p. 209). In agricultural landscapes, hummingbirds were observed traveling longer distances and took more circuitous routes than in forested landscapes. Overall, movement paths were strongly linked with areas that contained higher forest cover (2009, p. 209). The flight of hummingbirds is one of the most energetically demanding forms of animal locomotion (Buermann et al. 2011, p. 1671). Due to habitat loss, Honduran emerald hummingbirds expend more energy to travel between and find suitable habitat that provides substrates for breeding, feeding, and nesting.

Palm Oil Production

Palm oil plantations in the Aguán River Basin have replaced pasture lands that were left behind after the banana plantations diminished from their initial success during the first part of the twentieth century (WWF 2008, p. 30). The palm oil production in the Aguán River Basin is concentrated between Sava and Tumbaderos (WWF 2008, p. 17, see Figure 1) and covers 28,082 ha (69,392 ac). The area includes plantations, processing plants, nurseries, palm oil collecting sites, and other infrastructure. Honduras' palm oil industry exported product worth over 21 million U.S. dollars in 2004, and Honduras is expected to increase its biofuels production (Silvestri 2008, p. iii). Other countries are encouraging Honduras to increase production of palm oil which would likely affect the Aguán River Basin (Silvestri 2008, pp. 47; WWF 2008, pp. 37-38). These changes in land use, from production of bananas to pastures, and then to palm oil plantations, have had an environmental cost (WWF 2008, pp. 30, 53-54) such as land degradation through deforestation and exposure to fertilizers and pesticides, which are discussed below.

To provide perspective on the magnitude of the production in this valley, the Aguán Valley Palm Producers Association (APROVA) is a cooperative of 154 oil palm farmers (USDA 2012, pp. 1-3). In 2009, APROVA opened its first palm oil processing plant, which processes up to five tons of palm oil per day (USDA 2012, pp. 1-3); there are now five processing plants. As of 1938, within the Aguán Valley 30,000 ha (74,131 ac) were tropical dry forest (Tierra America 2012, pp. 1-2). By 1977, suitable habitat for the Honduran emerald hummingbird had been reduced to 16,000 ha (39,537 ac), and in 2000, only 8,495 ha (20,991 ac) remained. Of that area, only 3,900 hectares (9,637 ac) can be considered well preserved enough to sustain significant populations of the Honduran emerald (Mejía pers. comm. in Tierra America 2012).

Because very little of this species' habitat is publicly owned, it is more difficult to provide protections to this species (approximately 84 percent of its suitable habitat is privately owned) (Steiner 2012 pers. comm.; FAO 2010, p. 238). In many cases, the only sites in Honduras that have maintained a viable ecosystem in somewhat of a natural state are places with irregular topography. Subsequently, these have become protected areas or private nature reserves (Portillo 2007, p. 75). Much of this species' original habitat, thorn forest, has been cleared for housing, towns, agriculture, and cattle grazing (Stattersfield and Capper 2000, p. 311; Thorn et al. 2000, p. 4). This species' remaining habitat in the Aguán Valley (Yoro Department) and Agalta Valley (Olancho Department) is primarily privately owned as large haciendas (plantations or farms), where cattle grazing, clearing for cattle, and plantation agriculture continues to occur (Stattersfield and Capper 2000, p. 311). In the lower river valley, agricultural cooperatives are raising citrus fruits, corn (maize), rice, and African palm for oil (WWF 2008, p. 12). Because most of this species' habitat is unprotected, the species is likely to continue to experience habitat degradation through conversion of its habitat to other uses such as cattle grazing and agricultural plantations.

Pesticides and Fertilizers

WWF notes that production yield level can only be increased with the use of agrochemicals such as fertilizer and more pesticides, which in turn all have an environmental impact. Before palm oil tree canopies are developed and sunlight is penetrating the ground, weeds are aggressive and frequent weed control is needed. Mechanical weed mowers hauled by agricultural tractors are used to keep weeds at a manageable height in between rows. Before the canopy is fully developed, areas around young plants are kept free of competing weeds mostly by chemical herbicides and by manually removing them (WWF 2008). Currently, these plantations are approximately 161 km (100 miles) north of the Honduran emerald hummingbird habitat, and are not known to directly affect this species (Hyman 2012, pers. comm.). However, it is likely that expansion of palm oil plantations in the Aguán River Basin will occur (Silvestri 2008, p. 48). Additionally, the significant amount of inputs, such as fertilizers and pesticides required by palm oil plantations, produce chemical residues that are discarded in several ways. All of these waste products have different fates, depending on their chemical and physical origin (WWF 2008, unpaginated), affecting Honduran emerald hummingbird habitat in various ways.

Roads

There are plans to pave the road between Olanchito and San Lorenzo, an approximately 46-km [28.6-mi] stretch that currently passes through the Aguán Valley which will further impact this species' habitat (Hyman 2012; pers. comm.; World Bank 2011, pp. 1-3; Hyman 2007, p. 10; Anderson pers. comm. 2008 in Petition 2008). Honduras is ranked among the countries with the lowest development of road networks in Central America (Acevedo et al. 2008, p. 1). The agricultural sector is the most important of the Honduran economy (Acevedo et al. 2008, p. 1); however, this sector is limited by difficulties of transportation and access to many of the productive areas of the country due to poor road infrastructure (Quintero et al., 2007, pp. 15-18; Winograd 2006).

Existing roads have been negatively impacted by hurricanes, flooding, and neglect after the crash of the banana industry. The Aguán and Agalta valleys, which contain this species' preferred habitat, are some of the most productive agricultural areas of the country, and this change in land use has decreased the available suitable habitat for the Honduran emerald hummingbird (Acevedo et al. 2008, p. 1). These agricultural areas of the country are in the departments of Atlantida (Aguán Valley) and Olancho (Agalta and Guayape valleys) and include bananas, coffee, palm oil, corn, beans, edible vegetables, fruits, and other crops. The improvement and development of roads to transport agricultural products to economic hubs is being considered by the Government of Honduras, which may affect the Honduran emerald hummingbird's habitat.

Growth in this economic sector is impeded by the lack of access to the most productive agricultural areas of the country due to poor road infrastructure. The road improvement project (Central Road, Route no. 23) is funded by the World Bank “Second Reconstruction and Improvement Project Road,” (World Bank 2011, pp. 1-3; Proceso Digital 2010). The road improvement project will likely bring more traffic, which will increase land speculation and settlement of homes along the road, ultimately impacting surrounding Honduran emerald habitat (Perez and Thorn 2012, pers. comm.; Steiner and Coto 2011). Roads through prime Honduran emerald habitat, which is presently being affected by cultivation of bananas and plantains, link the river valley to the ports at Tela, La Ceiba, Trujillo, and Puerto Cortés.

This road construction project to widen the main highway between Olanchito and Yoro, spanning 57 km (35 mi) has been in the planning stages for several years. A project has been contingent on several factors, such as a loan from the World Bank and implementation of measures to mitigate the impact on the environment. A 2007 World Bank report indicated that during the project planning stage, the scope of the project changed so that the road segment passing through vital habitat for the Honduran emerald hummingbird was not implemented (Quintero 2007). In this report, the World Bank indicated that a Payments for Environmental Services plan, if successfully implemented, could lead to the long-term protection of an additional 1,000-2,000 hectares (2,474-4,942 ac) of Honduran emerald habitat on private lands. This, in turn, would address environmental concerns associated with the proposed paving of the Olanchito-San Lorenzo road (Quintero et al. 2007, p. 15). However, the status of this road project remains unclear.

The Agalta Valley is traversed by a highway that has been proposed to be repaved (Hyman 2012, pers. comm.; Inter American Development Bank 2012). This region is an area with a high rate of poverty—this highway is, in part, intended to improve the economic conditions in this region. This region contains approximately 50,000 human inhabitants. The highway will complete the second paved transit route between the Pacific and Atlantic oceans in Honduras. The road is being improved in order to provide a better link between Tegucigalpa and the Atlantic coast of Honduras and will better connect the Departments of Francisco Morazán, Olancho, and Colón. It is unclear how this highway will affect the remaining 5,000 hectares (12,355 ac) of this species' habitat (Bonta 2011, pers. comm.) in this valley.

Although this species exists in the Agalta Valley, very little information regarding the factors affecting this species in this area are known. Reports indicate that areas that contain suitable habitat characteristics for the Honduran emerald hummingbird are being cleared for rice cultivation (Hyman 2012, pers. comm.; Bonta 2011, pers. comm.). Several of the remaining habitat patches are connected by narrow corridors of habitat along property lines and waterways, but most of the patches of remaining habitat are “islands” within cattle pasture, which comprises approximately 90 percent of the Valley's area (Bonta 2011, pers. comm.). It is unclear whether the species migrates between the Agalta and Aguán valleys.

Hydroelectric and Development Projects

The construction of several development projects could possibly affect this species' habitat (Bonta 2012, pers. comm.) in the Agalta Valley. At least two hydroelectric projects have become operational in recent years (Bonta 2012, pers. comm.). These projects could likely result in more infrastructure development in the Valley which could also affect the Honduran emerald habitat. Additionally, several agricultural development projects may be underway in the Agalta Valley (Bonta 2012, pers. comm.). Bonta indicates that the following projects, which can be located at http://www.hondurasopenforbusiness.com, are likely to affect the Honduran emerald habitat.

Although highway construction, agricultural development, and resulting infrastructure is likely to occur in the Agalta Valley, it is unclear how these activities would negatively affect the Honduran emerald hummingbird in this valley.

International Trade

Data obtained from the United Nations Environment Programme-World Conservation Monitoring Center (UNEP-WCMC) show that, since its listing in CITES Appendix II in 1987, only two Honduran emerald hummingbird specimens have been recorded in international trade, involving two bodies of unknown origin from Germany to the United States in 1996 (UNEP-WCMC 2009b). Therefore, international trade is not a factor influencing the species' status in the wild. Nor are we aware of any other information that indicates that collection or overutilization of the Honduran emerald hummingbird is affecting this species.

Disease and Predation

The Intergovernmental Panel on Climate Change (2007, p. 51) suggests that the distribution of some disease vectors may change as a result of climate change. However, after conducting a status review of the Honduran emerald hummingbird and consulting with experts, we have no information at this time to suggest that any specific diseases are or may become problematic to this species.

Small and Declining Population

The population of the Honduran emerald hummingbird is small and very likely declining (BLI 2012, pp. 1-2; Stattersfield and Capper 2000, p. 311). In 2007, the information available indicated that this species had experienced a population decline since the 1960s and consisted of fewer than 2,000 individuals distributed within two, and possibly a third, valleys (BLI 2008, p. 2; Anderson and Hyman 2007, p. 6). In 2012, BLI stated that the population estimate was between 250 and 999 birds, within an estimated area of occupancy (AOO) of 12 km2 (4.6 mi2) within an overall range of 400 km2 (154 mi2). However, local experts believe its actual extent of occurrence is even smaller—closer to 150 km2 (58 mi2) (Perez and Thorn pers. comm. 2012).

Species often tend to have a higher risk of extinction if they occupy a small geographic range, occur at low density, occupy a high trophic level (position in food chain), and exhibit low reproductive rates (Purvis et al. 2000, p. 1949). Small populations can be more affected by factors such as demographic stochasticity (variability in population growth rates arising from random differences among individuals in survival and reproduction within a season), local catastrophes, and inbreeding (Pimm et al. 1988, pp. 757, 773-775). A small, declining population makes the species vulnerable to genetic stochasticity (random changes in the genetic composition of a population) due to inbreeding depression and genetic drift (random changes in gene frequency). This, in turn, compromises a species' ability to adapt genetically to changing environments (Frankham 1996, p. 1,507) reduces fitness, and increases extinction risk (Reed and Frankham 2003, pp. 233-234). Alternatively, species can adapt to changes in their environment and expand their range (Pateman 2012, pp. 1,028-1,030), although this does not appear to be the case with the Honduran emerald hummingbird.

The range and abundance of the hummingbird has been significantly curtailed. Because the Honduran emerald hummingbird is currently found in only three valleys, and has undergone a restriction in range and a decline in population size, any threats to the species, alone or in combination, are further magnified. In order for a population to sustain itself, there must be enough reproducing individuals and habitat to ensure its survival. Limited-range species are susceptible to extirpation, particularly when a species' remaining population is already small or its distribution is too fragmented. In addition, while this hummingbird may be either tolerant of fragmented thorn forests or appear to be tolerant of fragmented thorn forests, these fragmented areas likely do not represent optimal conditions for the species. The fragmentation of the habitat and increased distance between suitable patches of habitat causes the species to expend more energy and resources in search of its nutritional requirements (Justino et al. 2012, pp. 194-195; Hadley and Betts 2009, p. 207). When habitat is degraded, there is often a time lag between the initial conversion or degradation of suitable habitats and the extinction of endemic bird populations (Brooks et al. 1999a, p. 1; Brooks et al. 1999b, p. 1140). Individuals of species may be more visible or appear to be more numerous when their habitat has disappeared; when in fact their population is decreasing because they have fewer resources or are expending more energy to reach the resources they need to survive. Remaining fragments of forested habitat will likely undergo further degradation due to their altered ecological dynamics and isolation (through infestation of gap-opportunistic species such as bamboo, which alter forest structure and cause a decrease in gene flow between populations) (Tabanez and Viana 2000, pp. 929-932).

The combined effects of habitat fragmentation and other factors on a species' population can act synergistically (Gilpin and Soulé 1986, p. 31). For example, an increase in habitat fragmentation can separate populations to the point where individuals can no longer disperse and breed among habitat patches, causing a shift in the demographic characteristics of a population and a reduction in genetic fitness (Gilpin and Soulé 1986, p. 31). This is especially applicable for a species such as the Honduran emerald hummingbird that was once more widespread; it has lost a significant amount (90 percent) of its historical range due to habitat loss and degradation.

Extreme Weather Events

Small, declining populations can also be especially vulnerable to environmental disturbances such as flooding, drought, or hurricanes (O'Grady 2004, pp. 513-514). The Honduran emerald hummingbird relies on specific habitat to provide for its breeding, feeding, and nesting. In 2012, Honduras was determined to be one of the countries most affected by climate change due to its geographic location which is in the direct path of many tropical storms and hurricanes (Harmeling 2012, pp. 5-6). Research and modeling have explored how changes in climate might affect areas such as Honduras (Gasner et al. 2010, p. 1250, Winograd 2002, p. 11). The term “climate change” refers to a change in the mean, variability, or seasonality of climate variables over time periods of decades or hundreds of years (Intergovernmental Panel on Climate Change (IPCC) 2007, p. 78). Forecasts of the rate and consequences of future climate change are based on the results of extensive modeling efforts conducted by scientists around the world (Solman 2011, p. 20; Laurance and Useche 2009, p. 1,432; Nuñez et al. 2008, p. 1; Margeno 2008, p. 1; Meehl et al. 2007, p. 753).

Climate change models, like all other scientific models, produce projections that have some uncertainty because of the assumptions used, the data available, and the specific model features. The science supporting climate model projections as well as models assessing their impacts on species and habitats will continue to be refined as more information becomes available. While projections from regional climate model simulations are informative, various methods to downscale projections to more localized areas in which the species lives are still imperfect and under development (Solman 2011, p. 20; Nuñez et al. 2008, p. 1; Marengo 2008, p. 1).

Honduras appears to have entered a more active period of hurricane activity (Pielke et al. 2003, p. 102). Studies of natural events in the last 100 years indicate that Honduras is highly vulnerable to an increase in frequency and intensity in the future not only hurricanes, but also landslides, flooding, and drought (Şekercioğlu et al. 2011; Gasner et al. 2010, p. 1250; Winograd 2006, p. 1). Due to its location and the biophysical traits of the region, Honduras is likely to be affected every 3 to 4 years by climate-related events, such as drought-related fires, floods, and landslides (Winograd 2006, p. 1). Winograd notes that 50 percent of Honduras is at risk of landslides, 30 percent is at risk of severe droughts, and 25 percent is at risk of flooding, particularly agricultural areas.

Arid-zone species are assumed to be more resilient to high temperatures and low humidity (Şekercioğlu et al. 2012, p. 5). However, species such as the Honduran emerald hummingbird are exposed to very dry conditions and are likely dependent on seasonal rains, as well as seasonal and permanent waterholes and rivers (Schneider and Griesser 2009 in Şekercioğlu et al. 2011, p. 5). Even small temperature increases can greatly increase the amount of birds' evaporative water loss (Şekercioğlu et al. 2011, p. 5). Warmer weather due to climate change is expected to impact the ability of birds in arid regions to sustain their water balance.

Climate models are not always able to predict the possible effects of ecological interactions, adaptation, or how species, particularly pollinators, might disperse in response to climate change (Buermann et al. 2011, p. 1671; Burkle and Alarcón 2011, p. 528; Pearson and Dawson 2003, p. 361). Honduras is clearly in the path of hurricanes (Winograd 2006, 2002; Pielke et al. 2003, pp. 101-103). However, additional research is still needed to determine how changes in climate may affect species such as the Honduran emerald hummingbird (Hegland et al. 2009, p. 184).

Conservation Measures in Place

Several mechanisms are in place that are intended to provide protections to this species. These protections include involvement by nongovernmental organizations (NGOs), wildlife protection laws, and a reserve designated to protect its habitat. These mechanisms are described below.

Laws and Regulatory Mechanisms

Honduras has made significant progress in conservation of its natural resources (Portillo 2007, p. 60; Vreugdenhil et al. 2002, pp. 6, 11, 20-25). In the past 30 years, protected areas have increased from less than 20 protected areas to an estimated 600 areas with protected status (Portillo 2007, p. 60). Significant progress was made particularly between 1974 and 1987; meetings with regional authorities were held regarding protected areas in order to promote the conservation of the natural and cultural heritage of Honduras (Portillo 2007, p. 60). In 2003, the First Mesoamerican Congress on Protected Areas was held in Managua. The System of Protected Areas is managed by various entities such as NGOs, associations of municipalities or local authorities, or by management agreements. However, in some cases, these protected areas are not being managed effectively, as described below (Portillo 2007, p. 63; Vreugdenhil et al. 2002, pp. 6, 11, 20-25).

NGO Involvement

In Honduras, several NGOs are participating in the conservation and management of this species such as The Nature Conservancy (TNC) and the Honduran Biodiversity Research Coalition. The Honduran Emerald Reserve was created by the Honduran Government in 2005 with support from TNC. TNC has provided both technical and financial support to the government and local community groups to complete a 10-year management plan for the Reserve. Some aspects of TNC's involvement have included marking the official reserve boundaries and providing training to partners in the management of reserves and protected areas. The Honduran Biodiversity Research Coalition is a group of scientists and conservationists established in 2011 that undertakes and promotes biodiversity research and conservation in Honduras.

Honduran Emerald Reserve

In 2009, the National Conservation and Forestry Institute (ICF) began a management plan for a protected area specifically for the Honduran emerald hummingbird. This was with the participation of municipalities and Arenal Olanchito, the department of Yoro, SOPTRAVI Honduras Armed Forces (HAF), the Ministry of Education through the Regional Environmental Education Center, CREATE, the Ministry of Tourism and the Ministry of Environment and Natural Resources, SERNA (Steiner and Coto 2011; Portillo 2007, p. 99). The Interagency Technical Committee for Monitoring and Honduran Emerald Hummingbird Habitat Management Area was formed. In 2010, the ICF, with financial support from The Nature Conservancy, finalized the management plan for the protected area (Resolution No. DE-MP-147-2010). This Reserve was established in connection with funding from the World Bank to finish building the main highway linking the capital with Olanchito, Yoro, via Cedros Francisco Morazán (Steiner and Coto 2011) (refer to section on Roads, above).

This reserve is located 34 km (21 mi) west of the city Olanchito in the Aguán Valley (see Figure 1). The reserve encompasses 1,217 ha (3,007 ac) and spans elevations between 220 and 800 meters (722 and 2,625 ft). There are 651 ha (1609 ac) of dry forest habitat remaining that is suitable for the Honduran emerald hummingbird (Perez and Thorn 2012, pers. comm.; Thorn et al. 2000 in Anderson 2010, p. 6). The Honduran Emerald Reserve is guarded by Honduran Air Force soldiers who patrol the reserve and do not allow visitors into the Reserve without prior permission (Hyman 2012b pers. comm.). However, cattle from neighboring land owners are frequently found grazing uncontrolled on the property on the Honduran emerald habitat (Steiner 2011, p. 1; House 2004, p. 30). Despite conservation efforts, land owners around the protected area want to expand their properties and are cutting more of the Honduran emerald hummingbird's suitable habitat in order to plant grass for cattle grazing (Hyman and Steiner 2012 pers. comm.). Because encroachment and livestock grazing continue to occur both around and in the Reserve, and this species requires more suitable habitat than what exists in the Reserve, this protected area is insufficient to provide adequate suitable habitat for this species.

In conclusion, Honduras is improving its management of its resources (FAO 2010). For example, in 2010, Honduras began an initiative to recover degraded areas and denuded forests (Ecolex 2011). However, most of the habitat required by the Honduran emerald hummingbird is privately owned, and the thorn forests are being converted to other uses that are not suitable for this species. Despite the progress made in Honduras with respect to laws and regulatory mechanisms in place to protect the Honduran emerald hummingbird, the species continues to face habitat loss and degradation.

Finding and Proposed Listing Determination

An assessment of the need for a species' protection under the Act is based on threats to that species and the regulatory mechanisms in place to ameliorate impacts from these threats. As required by section 4(a)(1) of the Act, we conducted a review of the status of this species and assessed the five factors in consideration of whether the Honduran emerald hummingbird is threatened or endangered throughout all of its range. These five factors are:

(a) The present or threatened destruction, modification, or curtailment of its habitat or range;

(e) Other natural or manmade factors affecting its continued existence.

We examined the best scientific and commercial information available regarding the past, present, and future threats faced by the species and consulted with species experts.

We found that habitat loss due to conversion to agriculture and plantations is the main factor affecting this species throughout its range (factor A) (Bonta 2012 pers. comm.; Perez and Thorn 2012 pers. comm.). Hummingbirds require a constant source of energy, primarily in the form of nectar. In order to meet its energy and nutritional requirements, this species needs access to intact, suitable habitat with a diversity of plant species that contain its energy sources throughout the year.

The Honduran emerald hummingbird and its habitat are being affected primarily by the clearing of dry forest for cattle grazing and agricultural development. Habitat degradation and loss continues to occur and affect the species throughout its range. Due to uncontrolled clearing of land to pastures or plantation agriculture, the hummingbird's dry forest habitat is now limited to a few small, isolated “islands” of suitable habitat, which are surrounded by banana plantations or cattle ranches (Perez and Thorn 2012, pers. comm.). The Honduran emerald hummingbirds' current occupied and suitable range has been highly reduced and severely fragmented. This hummingbird species is expending more energy now in order to find food sources to meet its energy needs, and its suitable habitat is becoming more scarce and fragmented, causing these habitat islands to become farther apart.

Historically, the Honduran emerald hummingbird existed in much higher numbers in more continuous, connected habitat. Its suitable habitat is becoming increasingly limited, and its suitable habitat is not likely to expand in the future. Its population is estimated to be between 200 and 1,000 individuals. Lack of a sufficient number of individuals in a local area or a decline in their individual or collective fitness may cause a decline in the population size, despite the presence of suitable habitat patches. In cases where populations are very small, effects on the species are exacerbated. Any loss of potentially reproducing individuals could have a devastating effect on the ability of the population to increase. The Aguán Valley is currently considered to contain the largest extent of thorn forest. The four largest fragments are between 360 and 476 ha (890 and 1176 ac), for a combined total of 1,704 ha (Anderson 2010, p. 6). However, very recent estimates of the species' actual extent of occurrence is 150 km2 (58 mi2), and one of the best patches of optimal Honduran emerald hummingbird habitat, due to its proximity to a nearby town has practically disappeared (Thorn 2012 pers. comm.).

A species may be affected by more than one threat; these factors can act in combination. Changes in Honduras' climate may be acting in combination with other factors to affect this species' habitat. Extreme weather events (an increase in the severity and frequency in hurricanes and increased periods of drought (factor E) may also affect this species' habitat. Both biotic and abiotic ecological interactions influence species distributions (Jankowski et al., 2010; Dunn et al., 2009). Many climate change models do not take into consideration interactions between species because data regarding these interactions are limited. Impacts typically operate synergistically, particularly when populations of a species are decreasing. Initial effects of one threat factor can later exacerbate the effects of other threat factors (Gilpin and Soulé 1986, pp. 25-26). Fragmentation of populations can decrease the fitness and reproductive potential of the species, which exacerbates other threats.

The species' small population size (factor E) combined with its highly restricted and severely fragmented range, increases the species' vulnerability to adverse natural events that destroy individuals and their habitat. The species' potential exposure to extreme weather events such as hurricanes, extended periods of drought, or flooding, in combination with habitat loss and degradation may add to factors affecting the continued existence of the species throughout its range now and in the future.

In conclusion, we have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats affecting this species. We have identified multiple factors that have interrelated impacts on this species; however the most significant threat is habitat loss and degradation, particularly since it has such a small and fragmented population, and it requires a variety of food sources. As a species' status continues to decline, often as a result of habitat loss or overutilization, the species will become increasingly vulnerable to other impacts. If this trend continues, its ultimate extinction due to one or more stochastic (random or unpredictable) events such as hurricanes, drought, or flooding becomes more likely. The species' small population size, its reproductive and life history traits, combined with its highly restricted and severely fragmented range, increases this species' vulnerability to other threats. These threats occur at a sufficient scale so that they are affecting the status of the species now and will in the future.

Our review of the information pertaining to the five threat factors supports a conclusion that the imminence, intensity, or magnitude of the factors affecting the Honduran emerald hummingbird, most significantly habitat loss, coupled with a small and declining population, place this species at risk of extinction throughout all of its range, such that a listing as endangered is warranted. We do not find that the factors affecting the species are likely to be sufficiently ameliorated in the foreseeable future. Therefore, on the basis of the best scientific and commercial information, we find that the Honduran emerald hummingbird meets the definition of an “endangered species” under the Act, and we are proposing to list the Honduran emerald hummingbird as endangered throughout its range.

Peer Review

In accordance with our joint policy with the National Marine Fisheries Service, “Notice of Interagency Cooperative Policy for Peer Review in Endangered Species Act Activities,” published in the Federal Register on July 1, 1994 (59 FR 34270), we will seek the expert opinions of at least three appropriate independent specialists regarding this proposed rule. The purpose of peer review is to ensure that our final determination is based on scientifically sound data, assumptions, and analyses. We will send copies of this proposed rule to the peer reviewers immediately following publication in the Federal Register. We will invite these peer reviewers to comment during the public comment period on our specific assumptions and conclusions regarding the proposal to list the Honduran emerald hummingbird.

We will consider all comments and information we receive during the comment period on this proposed rule during our preparation of a final determination. Accordingly, our final decision may differ from this proposal.

Available Conservation Measures

Conservation measures provided to species listed as endangered or threatened under the Act include recognition, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and encourages and results in conservation actions by Federal and State governments, private agencies and interest groups, and individuals.

The ESA and its implementing regulations set forth a series of general prohibitions and exceptions that apply to all endangered and threatened wildlife. These prohibitions, at 50 CFR 17.21 and 17.31, in part, make it illegal for any person subject to the jurisdiction of the United States to “take” (includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or to attempt any of these) within the United States or upon the high seas; import or export; deliver, receive, carry, transport, or ship in interstate commerce in the course of commercial activity; or sell or offer for sale in interstate or foreign commerce any endangered wildlife species. It also is illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken in violation of the ESA. Certain exceptions apply to agents of the Service and State conservation agencies.

Permits may be issued to carry out otherwise prohibited activities involving endangered and threatened wildlife species under certain circumstances. Regulations governing permits for endangered species are codified at 50 CFR 17.22. With regard to endangered wildlife, a permit may be issued for the following purposes: For scientific purposes, to enhance the propagation or survival of the species and for incidental take in connection with otherwise lawful activities.

Clarity of the Rule

We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

(a) Be logically organized;

(b) Use the active voice to address readers directly;

(c) Use clear language rather than jargon;

(d) Be divided into short sections and sentences; and

(e) Use lists and tables wherever possible.

If you feel that we have not met these requirements, send us comments by one of the methods listed in the ADDRESSES section. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the names of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

National Environmental Policy Act (NEPA)

We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), need not be prepared in connection with regulations adopted under section 4(a) of the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

References Cited

A complete list of all references cited in this proposed rule is available on the Internet at http://www.regulations.gov or upon request from the Branch of Foreign Species, Endangered Species Program, U.S. Fish and Wildlife Service (see FOR FURTHER INFORMATION CONTACT).

Author(s)

The primary author of this proposed rule is Amy Brisendine, Branch of Foreign Species, Endangered Species Program, U.S. Fish and Wildlife Service.

2. Amend § 17.11(h) by adding a new entry for “Hummingbird, Honduran emerald” in alphabetical order under BIRDS to the List of Endangered and Threatened Wildlife to read as follows:§ 17.11 Endangered and threatened wildlife.

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Proposed rule; request for comments.

SUMMARY:

This action proposes revisions to several portions of the Pacific Coast Groundfish Fishery Trawl Rationalization Program regulations and requests comments on NMFS' preliminary conclusion that the Pacific Fishery Management Council's (Council's) selection of the no action alternative regarding the reconsideration of initial allocation of Pacific whiting (whiting) is consistent with the Magnuson-Stevens Fishery Conservation and Management Act (MSA), the Pacific Coast Groundfish Fishery Management Plan (FMP), and other applicable law.. This action is necessary to comply with a court order requiring NMFS to reconsider the initial allocation of whiting to the shorebased individual fishing quota (IFQ) fishery and the at-sea mothership fishery. These proposed regulatory changes would affect the transfer of quota share (QS) and individual bycatch quota (IBQ) between QS accounts in the shorebased IFQ fishery, and severability of catch history assignments in the mothership fishery, both of which would be allowed on specified dates with the exception of widow rockfish. Widow rockfish is no longer an overfished species and transfer of QS for this species will be reinstated pending reconsideration of the allocation of widow rockfish QS in a future action. The divestiture period for widow rockfish QS in the IFQ fishery is also proposed to be delayed indefinitely.

DATES:

Comments on this proposed rule must be received no later than 5 p.m., local time on February 1, 2013.

ADDRESSES:

You may submit comments on this document, identified by NOAA-NMFS-2012-0063, by any of the following methods:

Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, or Adobe PDF file formats only.

In January 2011, NMFS implemented the trawl rationalization program for the Pacific coast groundfish fishery's trawl fleet (see 75 FR 78344; Dec. 15, 2010). The program was adopted in 2010 through Amendments 20 and 21 to the FMP and consists of an IFQ program for the shorebased trawl fleet (including whiting and non-whiting fisheries); and cooperative (coop) programs for the at-sea mothership and catcher/processor trawl fleets (whiting only). The initial allocations of whiting were challenged in Pacific Dawn v. Bryson, No. C10-4829 TEH (N.D. Cal.) (Pacific Dawn). Following a decision on summary judgment that NMFS had not considered all of the required information and failed to provide an adequate basis in setting the initial whiting allocations, the court, on February 21, 2012, issued an order remanding the regulations establishing the initial allocations of whiting for the shorebased IFQ fishery and the at-sea mothership fishery “for further consideration” consistent with the court's December 22, 2011, summary judgment ruling. The order requires NMFS to implement revised regulations before the 2013 Pacific whiting fishing season begins on April 1, 2013.

On February 29, 2012, NMFS informed the Council of the order issued in Pacific Dawn. NMFS requested that the Council initiate the reconsideration of the initial allocations for QS of whiting in the shorebased IFQ fishery and for whiting catch history assignments in the at-sea mothership fishery. NMFS also determined that a rulemaking was needed to delay or revise portions of the existing regulations while the Council and NMFS reconsidered the initial allocation of whiting, and informed the Council of its intent to publish an Advance Notice of Proposed Rulemaking (ANPR) to notify the public of the reconsideration and the process the agency and Council would follow.

NMFS published the ANPR on April 4, 2012 (77 FR 20337), which, among other things, announced the court's order, the Council meetings that would be addressing the whiting reconsideration, and NMFS' plan to publish two rulemakings in response to the court order. These two rulemakings are referred to as Reconsideration of Allocation of Whiting, Rules 1 and 2 (RAW 1 and RAW 2, respectively).

RAW 1

NMFS used emergency action authority under the MSA section 305(c)(1), 16 U.S.C. 1855(c), for RAW 1, which was proposed on May 21, 2012 (77 FR 29955), with the final rule published on August 1, 2012 (77 FR 45508). RAW 1 delayed the ability to transfer QS and IBQ between QS accounts in the shorebased IFQ fishery, and to the ability to sever mothership/catcher vessel endorsement and its associated catch history assignment (CHA) from limited entry trawl permits in the mothership fishery, pending the outcome of the reconsideration. The August 1 emergency rule also delayed issuance of quota associated with whiting directed trips at the beginning of the 2013 fishing year, as recommended by the Council. The RAW 1 rule is effective through January 28, 2013, and may be extended for an additional 186 days, consistent with the MSA.

RAW 2

At its March 2-7, 2012, meeting, the Council received briefings from NMFS regarding the remedy order issued in Pacific Dawn and selected a three-meeting Council rulemaking process. On March 15, 2012, NMFS submitted a letter to the Council that provided a potential range of alternatives for reconsideration that NMFS believed was appropriate.

At its April 1-6, 2012, meeting, the Council received briefings from NMFS on the range of alternatives included in the March 15, 2012, letter, as well as guidance on allocation issues addressed in the MSA, agency guidance documents, and FMP goals and objectives. The Council received approximately two hours of public comment from nine individuals or groups of individuals and also received recommendations from its Groundfish Advisory Subpanel. After consideration of the public comment and advisory group recommendations, the Council added an additional alternative for analysis that would consider an allocation period of 2000-2010.

At the June 21-26, 2012, Council meeting, NMFS and Council staff gave an overview on the Draft Environmental Assessment (EA) and briefed the Council on the analysis of the range of alternatives. The Council, after listening to recommendations from its Groundfish Advisory Subpanel and public testimony, refined one alternative and asked staff to update the analyses over the summer based on this refinement. The Council did not select a preliminary preferred alternative, stating that it needed additional time to understand the analyses and information presented. The Council reconfirmed its intention to select a final preferred alternative at its September 2012 meeting.

At the September 13-18, 2012, Council meeting, the Council considered the Draft EA, which had been revised to incorporate more detailed information and analyzed a range of whiting allocation periods spanning the years between 1994 and 2010 for shoreside and mothership catcher vessels, and the years between 1998 and 2010 for shoreside processors. The Council listened to testimony from 24 individuals or groups of individuals, totaling nearly seven hours of public testimony and also received advisory body reports from both the Groundfish Advisory Subpanel and the Scientific and Statistical Committee. Following Council discussion, the Council voted to select the no-action alternative (initial whiting allocation qualifying years of 1994 through 2003 for the shoreside and mothership catcher vessels and 1998 through 2004 for shoreside whiting processors) as the final preferred alternative.

On October 30, 2012, the Council transmitted to NMFS its recommendation that the no-action alternative be adopted; the letter and its accompanying rationale are available at the Council's Web site at http://www.pcouncil.org/wp-content/uploads/Xmit_WhtgRealloc_Ltr.pdf.

Rationale for Proposing No Changes to the Initial Allocations of Whiting

The MSA requires NMFS to review all regulations that the Council submits to determine whether the regulations are consistent with the MSA, the FMP, and other applicable law (16 U.S.C. 1854(b)). NMFS reviewed the Council record and the proposed regulatory language and has preliminarily determined that the Council's recommendation to maintain the existing initial whiting allocations is consistent the MSA, the FMP, the court's order in Pacific Dawn, and other applicable law. NMFS requests comments on this conclusion; after review of the comments and the record as a whole, NMFS will make a final decision that will be announced in the Federal Register. The reasons for NMFS' preliminary determination are discussed below.

The MSA establishes the general requirement that allocations be fair and equitable (see e.g., 16 U.S.C. 1851(a)(4)). For allocations made in association with limited access privilege programs, the MSA further requires that the Council or NMFS must “establish procedures to ensure fair and equitable initial allocations, including consideration of: (i) Current and historical harvests; (ii) employment in the harvesting and processing sectors; (iii) investments in, and dependence upon, the fishery; and (iv) the current and historical participation of fishing communities” (16 U.S.C. 1853a(c)(5)(A)). Although the Council's recommendation must be consistent with the MSA as a whole when viewed in light of the FMP, the factors listed above were essential to the Council's and NMFS' decisions.

Ultimately, NMFS believes that irrespective of the qualifying years chosen as a result of the reconsideration, there is not one alternative that would be perceived as equally fair and equitable by all participants. Further, as long as the Council recommendation provides for a fair and equitable allocation by consideration of the required factors, and the Council and NMFS provide a reasonable explanation for that decision, then the requirements of 16 U.S.C. 1853a(c)(5)(A) are satisfied. Simply put, the MSA does not require a particular outcome for the allocation decision at issue here. This section addresses each factor from 16 U.S.C. 1853a(c)(5)(A) in a general fashion, followed by the overarching considerations that lead NMFS to preliminarily conclude that the initial whiting allocations are fair and equitable.

Current and Historical Harvests

The alternatives that the Council examined allocated quota using catch history based on a range of years—1994 through 2010—that is as wide as possible given the best available scientific information on the groundfish trawl fleet prior to implementation of Amendment 20. Under the existing qualifying period for harvesters of 1994 through 2003, previously qualifying permits with catch history post-2003 or new entrants after 2003 do not have that catch history count towards their initial allocation of whiting. However, in light of the overarching considerations, the whiting allocation to harvesters based on a qualifying period of 1994 through 2003 is fair and equitable, and furthers the purposes of Amendment 20.

Consideration of current and historical harvests appears less relevant to the issue of the qualifying period for processors because processors do not “harvest” fish. To the extent that current and historical harvests relate to the decision on an appropriate qualifying period for processors, this factor is considered by examining the current and historical harvests delivered to shorebased processors. Current and historical harvests and their relationship to processors are also considered indirectly through the other three factors. NMFS specifically requests comment on the relevance of “current and historical harvests” to the determination of the qualifying period for processors.

Employment in the Harvesting and Processing Sectors

The Draft EA concludes that rationalization brings changes in the nature and patterns of employment in both the processing and harvesting sectors. While there may be some initial local shifts or variations in employment depending on the whiting allocation alternative chosen, the analysis did not anticipate notable variation in the stability or level of employment overall among the identified alternatives. However, the Groundfish Advisory Subpanel and the Draft EA also noted that moving the end year of the qualifying periods to include more recent years could result in additional QS being allocated to processors in the north, which is where much of the whiting harvest and processing has more recently been taking place. Although the Draft EA indicates that the actual location of whiting harvest and delivery to processors appears to be predominately affected by factors other than the amount of whiting QS held in a given geographic area, the QS is still an asset for processors that can be used to offset the effects of some of the geographic shifts that may occur irrespective of QS distribution. Additionally, some processors testified as to the importance of their QS in attracting additional whiting deliveries to their facilities. Maintaining the 1998-2004 time period for processors and its broader geographic distribution may contribute to employment in coastal communities when paired with the 1994-2003 qualifying period for harvesters. Further, in light of the overarching considerations, the existing qualifying periods result in a fair and equitable allocation. NMFS specifically requests comments on the degree to which the existing qualifying periods, or the alternative qualifying periods considered, could affect employment in the harvesting and processing sectors.

Investments In, and Dependence Upon, the Fishery

The MSA does not provide a definition of “dependence.” In general terms, dependence upon the fishery relates to the degree to which participants rely on the whiting fishery as a source of wealth, income, or employment to financially support their business. Current harvests, historical harvests, levels of investment over time, and levels of participation over time are all aspects of dependence, as they can all be connected to the processes that fishers and processors use to generate income. The level of dependence could be viewed as a function of any number of metrics including: The number of the years an entity has participated in the fishery; the total whiting harvested or the amount processed by an entity; the sum total of all fish harvested or processed by an entity; the total income earning activities by an entity (for example, some processors process fish for other processors, or help in the trucking of fish); or an entity's relationship to other entities (for example, one company may own several processing plants or limited entry permits another company may be closely affiliated with another company either through ownership relationships or through sales agreements). However, these are all just individual measurements of factors that are related to dependence, not measures of dependence in and of themselves. Furthermore, it is difficult to calculate “dependence” per se even using all of these measures.

The extent to which participation in the harvesting or processing of whiting past the 2003-2004 end of the qualifying periods reflects dependence upon the fishery is largely reliant upon the metric used to evaluate dependence and the time periods during which that metric is applied. Although some of the alternatives considered would allocate more quota to the most recent participants in the fishery, even assuming recent participation in the fishery is the appropriate metric for evaluating the level of dependence, the overarching considerations lead NMFS to preliminarily conclude that the existing qualifying periods for harvesters and processors result in a fair and equitable allocation, consistent with the MSA. As discussed more fully below, the choice of ending the qualifying period for processors in 2004 rather than the 2003 control date was done to explicitly recognize investments in processing while still furthering the purposes of Amendment 20.

Moreover, the fact that the existing qualifying period for harvesters results in some limited QS allocation to permits without activity in the whiting fishery post 2003 does not alter NMFS' conclusion. Under the status quo qualifying period, there were twenty-one limited entry trawl permits and 14 mothership/catcher vessel endorsed limited entry trawl permits that received whiting quota share or catch history assignments even though they did not fish after 2003. The analysis then researched whether these permits were fished in the other whiting sector, other Pacific groundfish fisheries, other west coast fisheries, or in other Alaska fisheries. After accounting for participation in other fisheries, there were a total of nine permits (shoreside or mothership) that apparently had no fishing activity off the West Coast or Alaska after 2003. These nine permits translate into 1.3 percent of the total shoreside whiting QS and 1.0 percent of the total mothership catch history assignments used for the 2011 and 2012 fisheries. However, the data set used for analysis may not have been complete as the permit may be owned by an entity that participates in fisheries other than west coast and Alaska fisheries. Furthermore, while some quota goes to harvester permits with no recent history under a 2003 end year for harvesters, the analysis in the record reflects that the extent of truly latent permits (not associated with an entity with recent whiting landings) is very small (roughly one percent for both shoreside and mothership harvesters). Awarding QS to these “latent” permits is consistent with the goal of reducing overcapitalization in the fishery and ending the “race for fish” because to do otherwise (i.e. award QS for activities beyond the control date) would create incentives for participants to expand their activities and investments after control dates are announced in the hope that they would be rewarded quota share.

The Council analysis characterizes the limited entry permit as an asset or investment, a highly fishery dependent investment. The EA states that “after 2003, it is reported that permit prices varied substantially based on the history associated with the permit, in anticipation of the trawl program.” Excluding changes due to company restructuring and changes due to death or divorce, eighteen permits changed hands after 2003 and before the end of 2010. Based on data recently collected by the NWFSC and public comment, during 2009-2010, three permits were sold at values that averaged about $315,000. The Council analysis also discussed the portfolio concept of permits. Fishermen frequently own several different types of permits as a business strategy to respond to the ups and downs of various fisheries. (A portfolio could include one or more limited entry trawl permits along with permits to crab, shrimp, or to fish in the Alaska Pollock fishery.) To participate in the trawl fishery, a person first needs to obtain one of a limited number of permits (at the time of implementation of the trawl rationalization program, there were 175 trawl endorsed permits). However, after investing in a permit, a permit owner has several options on how to use that investment. The permit owner can fish the permit with his vessel or lease the permit to another person. The owner can also sell the permit or choose not to fish the permit or have anyone else fish the permit. As evidence of the importance of this investment, the permit owner needs to renew and pay a permit fee annually. The Region has preliminarily concluded that these types of investments are an important factor in determining dependence on the fishery. NMFS is requesting comment on the extent that such investments reflect dependence on the fishery.

Some believe that most recent fishing history is the best reflection of dependence on the fishery. There is no NMFS guidance on the measurement of dependence. Equating dependence solely to recent fishing history could be in a sense “double counting” as the MSA already indicates that “current” harvests are to be considered as a separate factor. From review of other NMFS and Council analyses, indicators of dependence are typically based on measures that relate the IFQ fishery revenues (whiting) to total revenues earned by the entity (whiting, crab, shrimp, pollock, etc.). It is not NMFS policy to use recent fishing as the only reflection of dependence on the fishery, nor is it NMFS policy to use recent fishing as the sole basis for determining the allocation period; such a determination must always be based on the specific facts each time allocations are considered. NMFS specifically requests comments on the degree to which the existing qualifying periods, or the alternative qualifying periods considered, result in a fair and equitable allocation when considering investments in and dependence upon the fishery, including what metrics should be considered in measuring investment in and dependence on the fishery and why, based on those metrics, any of the alternatives result in a fair and equitable allocation.

The Current and Historical Participation of Fishing Communities

The Council considered the current and historical participation of fishing communities in several ways. Similar to the analysis for current and historical harvests, by examining alternatives with a wide range of years, the Council and NMFS were able to review the current and historical participation of communities as they changed over time. Further, the original decision on Amendment 20 contained measures that examined the role of fishing communities over time. For example, the 20 percent allocation to processors was intended to provide increased stability to communities by creating an added incentive for catcher vessels to land whiting in those communities and increase bargaining parity between harvesters and processors. The Draft EA also notes that:

More certain than the initial allocation's effect on long-term distribution of fishing activity among communities is the one-time distribution of wealth in the form of quota shares going to members of the communities and the secondary effects that this one-time distribution of wealth may have as it affects expenditures within the community. Thus, what is at stake in the initial allocation is not necessarily a disruption to what entities are able to harvest, but rather an initial allocation of wealth and, through the wealth represented by the QS/CHA, an augmented ability to make up any shortfalls through QS/CHA acquisitions in the market place. Those receiving larger initial allocations, larger initial grants of wealth, will be better-positioned to finance or other wise make additional purchases of QS/CHA to make up for any shortfalls in their initial allocations.

NMFS preliminarily concludes that the existing qualifying periods reflect fair and equitable allocations that were intended to spread the impacts of the trawl rationalization program along the coast. NMFS specifically requests comments with respect to current and historical participation of fishing communities and how consideration of this factor supports the existing whiting allocations, or the other alternative qualifying periods considered.

Overarching Considerations

NMFS believes a crucial consideration that must be taken into account when reviewing the initial whiting allocation decision is the control date. Historically, the Council and other fishery management councils have announced and adopted control dates to prevent speculative participation in a fishery pending development of a limited access program, with the intent that the developed program may use the control date as the end date of fishing history that would count toward establishing initial allocations, if appropriate. Since adopting the initial control date in 2003 (announced in a Federal Register notice in early 2004), the Council and NMFS have actively worked on developing and refining the groundfish trawl catch share program. As discussed in detail in the draft EA, beginning in 2003, the Council held numerous public committee meetings (averaging ten a year), conducted public discussions on the trawl program during numerous Council meetings, and worked consistently on the program over a seven year period (2003-2010).

In deciding to develop a catch share program for the groundfish trawl fishery, the Council was concerned with the problems of overcapitalization and ending the race for fish. By notifying existing and potential participants that the Council was seriously pursuing development of a catch share program, the Council intended to deter additional unwanted effort and capital in the fishery. NMFS recognizes that the plain language of the Federal Register notice announcing the control date does not “guarantee” that activity occurring in any specific period will count toward initial allocations. In addition, control dates have been abandoned in the past for various reasons by this Council and in other regions. However, NMFS also believes it was reasonable for participants to interpret the control date as signaling a potential end date for the qualifying period, and there was extensive public testimony reflecting the fact that many participants did in fact make business decisions based on the control date. Testimony from some participants indicated that had they thought the control date would not be used as the end of the qualifying period, they would have changed plans to increase their whiting harvests while leasing their quota in other fisheries. In addition, if fishermen believed that activity beyond the control date would result in more quota, they could have chosen to invest additional capital into their boats, thus increasing overcapitalization and exacerbating the race for fish. Accordingly, participants who made business decisions based on the assumption that the control date would be used as the end of the qualifying period acted in a manner consistent with the conservation goals of the Council. In addition, based on the fact that the control date modified at least some participants' fishing behavior, extending the qualifying period further into the future could result in participants in other fisheries disregarding any signal sent by announcing a new control date in a different program.

Although the length of time between the original control date and the agency approval in 2010, implementation of the program in 2011, and this proposed decision in 2012, is longer than the comparable time span in most programs that announce control dates, this is explained by the complexity of the program, which resulted in significant time needed to involve the public and fishery participants, develop alternatives, develop appropriate analytical documents, reach a final decision, and implement that decision. The trawl rationalization program includes multi-species trading in a diverse fleet composed of small trawlers, large motherships, and catcher-processors in communities along most of the West Coast of the United States. From the time the control date was announced, there was continuous and systematic effort by the Council and the agency to develop and implement, with full public participation, one of the most complex rationalization programs ever devised.

For the harvesters, the 1994-2003 period is the widest date range possible to base allocations on landings history while ending the qualifying period on the control date. Using this qualifying period recognizes the conservation benefits accruing from those whose fishing behavior did not change in an effort to gain more quota. While some public testimony indicated that their increased effort post-2003 was not a result of speculation, there is no mechanism available to separate out speculative behavior from non-speculative nor is there any way to quantify the extent to which the control date prevented additional speculative effort or capital. By maintaining the control date as the cut-off, however, those who did engage in such speculation are not rewarded and those who honored the control date are not penalized. Although the Council and NMFS were aware that new entrants had come into the whiting fishery since 2003, these entrants did so aware of the control date and that their activity after 2003 may not count toward any initial allocation decision. While maintaining the existing cutoffs for initial allocations excludes more current harvest and landings from the allocation formulas, the impacts to the dependence and investments of most participants are relatively modest. For example, the shift of whiting quota shares that would result from status quo to Alternative 4 (which most favors recent history) represents only 17 percent for shorebased catcher vessels, and 3.1 percent for shorebased processors. Therefore it is still fair and equitable to have some recent catch history not count toward initial allocations. Maintaining the control date as the end of the qualifying period for harvesters is fully consistent with the original purposes of Amendment 20, including reducing overcapitalization and ending the race for fish. However, for processors, the Council chose the end year of 2004, contrary to the 2003 control date, fairly late in the original decision-making process.

NMFS preliminarily concludes that the Council's recommendation to use 2004 as the end year for processors is supported by several rationales. First, the Council received testimony that there was a significant investment in whiting processing capability made in 2002 and 2003 before the control date was announced, and as discussed further below, before the applicability of the control date to processors was clarified. That investment did not begin to earn processing history until 2003 and 2004. The Council considered this information in making its original initial allocation, and in more detail during the reconsideration. The Council concluded that it would be unfair to not recognize this investment decision that was made prior to the control date. By extending the qualifying period for processors to 2004, some of the additional processing capabilities could be recognized as part of the qualifying history. Furthermore, testimony received during the Council's reconsideration revealed no significant change from their knowledge of processor investments in the whiting fishery, i.e., no testimony indicated other processors made a significant investment before the 2003 control that became operational in 2004 or later.

In addition, the originally published Federal Register notice of the 2003 control date did not clearly indicate that the date applied to processors. Subsequent clarifications were published in the middle of the 2004 season and just prior to the start of the 2005 fishing season. Accordingly, in addition to at least partially crediting investment decisions made prior to the control date, extending the end year of the qualifying period to 2004 reasonably accounts for the fact that processors may not have had adequate notice of the applicability of the 2003 control date until after the start of the 2004 whiting season.

Since the investment decision was made before the control date, changing the end year of the qualifying period for processors to 2004 did not benefit those who decided to increase processing capacity after they were aware that 2003 control date could potentially apply to processors. While adopting 2004 for processors does move beyond the original control date, it only departs by a single year and does so for what NMFS preliminary concludes are valid justifications. NMFS specifically requests comment on the importance of using the control date as the end of the qualifying period for harvesters and the rationale for varying the end of the qualifying period for processor by one year to 2004.

Overall, there is a sufficient basis for NMFS to preliminarily conclude that the Council's initial whiting allocation recommendation, including using qualification years of 1994-2003 for whiting harvesters and 1998-2004 for whiting processors, is consistent with the requirements of the MSA, the FMP, and other applicable law, and provides for a fair and equitable initial allocation to the shoreside and mothership sectors of the whiting fishery. As the NOAA Technical Memorandum entitled “The Design and Use of Limited Access Privilege Programs, (Anderson and Holliday, November 2007) suggests, the record to date confirms that it does not appear to be possible to devise whiting allocations that will be perceived as equally fair by all eligible entities. Consistent with that guidance, however, the Council and agency have followed a public and transparent process that involved all concerned stakeholders and allowed repeated opportunities to provide input. NMFS believes this process has been appropriate and essential to advancing a fair and equitable allocation. The record also establishes that in weighing the various factors identified under the MSA for initial allocations, there are inevitably tradeoffs that result under the various alternatives. In striking an overall balance, NMFS preliminarily finds that the reasons supporting maintaining the existing allocations for the shoreside and mothership whiting fisheries (e.g., honoring the control date and the policy goals of Amendment 20, wide geographic distribution of the program benefits and costs along the coast and the corresponding fishing communities) outweigh those favoring more recent history (e.g., reflection of the more current market and fishery conditions, providing greater amounts of quota to the most recent fishery participants, and reducing or eliminating quota shares to some pemit holders that do not have recent history). NMFS also notes that the draft EA indicates that the action alternatives result in a larger number of permits losing quota share to the benefit of a smaller number of permits that would gain quota share. NMFS requests comment on the overall balancing of the factors and impacts of this initial allocation decision.

Additional Considerations

NMFS requests comment on the following additional considerations relating to its preliminary determination that the proposed initial whiting allocations are fair and equitable and consistent with the MSA, FMP, and other applicable law.

Consideration of All the Relevant Factors and Information

NMFS finds that the relevant factors and best available information have been considered in compliance with requirements of the MSA in reaching its preliminary determination. NMFS requests comment over the degree to which there has been adequate consideration of the factors identified for initial allocations under the MSA including: current and historical harvests; employment in the harvesting and processing sectors; investments in, and dependence upon, the fishery; and, the current and historical participation of fishing communities. As reflected in the Council record and draft EA, additional factors have also been considered, and NMFS also requests comment on whether all other relevant factors and related information for each factor have been adequately considered.

Industry Support for Allocation

NMFS notes that at the time of the original initial allocation decision and during the reconsideration before the Council, it appeared that the most, but not all, of participants supported the use of the existing qualifying periods rather than any of the alternatives considered. NMFS finds that the industry support for the original allocations referred to in the earlier record and the court summary judgment order in Pacific Dawn as a “compromise” was in fact appropriate input from the affected industry that was developed as part of the overall transparent and public process that established the catch shares program. NMFS requests comment from the public on this issue, including on the degree to which industry supports the existing allocations, the extent to which NMFS should take into account the degree of industry support, and how the amount of support should inform consideration of the factors listed in the MSA for allocation decisions in light of the analysis provided in the draft EA.

Regulatory Proposals

NMFS proposes to revise the portions of the regulations that were temporarily delayed or revised by RAW 1. Additionally, to be consistent with Council action at its November 2012 meeting on a QS transfer provision affecting widow rockfish, NMFS proposes to extend the moratorium on transfer of widow rockfish QS in the IFQ fishery indefinitely pending the Council's reconsideration of the allocation of QS for widow rockfish. Specifically, NMFS proposes to:

The trawl rationalization program, as implemented in January 2011, delayed QS holders' ability to transfer QS and IBQ between QS accounts in the shorebased IFQ fishery through December 31, 2012 (i.e., transfer could begin in 2013). RAW 1 further delayed QS holders' ability to transfer QS and IBQ between QS accounts. This suspension of QS transfers was necessary to avoid complications which would occur if QS permit owners in the shorebased IFQ fishery were allowed to transfer QS percentages prior to the whiting allocation reconsideration. Since NMFS proposes to concur with the Council's no action recommendation, no changes to the initial whiting allocations are proposed. However, NMFS still requires adequate time to develop the regulations and software necessary to allow for transfer of QS, and the Council has not taken final action regarding reallocation of widow rockfish quota. Therefore, the Council recommended and NMFS proposes to revise § 660.140(d)(3)(ii)(B)(2) to allow transfer of QS or IBQ (except for widow rockfish QS) between QS permit holders in the shorebased IFQ fishery, subject to accumulation limits and approval by NMFS, beginning January 1, 2014. Additionally, the rule would reinstate language that QS and IBQ cannot be transferred between December 1 and December 31 of each year, nor may QS and IBQ be transferred to a vessel account.

Require QS Permit Holders in the Shorebased IFQ Fishery Holding QS or IBQ in Excess of the Accumulation Limits To Divest Themselves of Excess QS (Except for Widow QS) or IBQ by November 30, 2015

The delayed implementation of regulations that allow for the transfer of QS necessitates a corresponding delay to the divestiture periods for those QS permit owners with QS over the accumulation limits (also called QS control limits) in the shorebased IFQ fishery. The current regulations, as revised by RAW 1, state that QS permit owners that have an initial allocation of QS or IBQ in excess of the accumulation limits will be allowed to receive that allocation, but must divest themselves of the excess QS or IBQ during the first two years once QS transfers are allowed. Maintaining the full two years for divestiture would provide QS permit owners with sufficient time to plan and arrange sales of excess QS, as originally recommended by the Council for this provision of the trawl rationalization program. While two years from January 1, 2014, is December 31, 2015, the regulations prior to RAW 1 and being proposed to be reinstated with this rule at § 660.140(d)(3)(ii)(B)(2) state that the transfer of QS between QS accounts and from a QS account to a vessel account is prohibited between December 1 through December 31. Therefore, this rule proposes to revise § 660.140(d)(4)(v) to require QS permit holders in the shoreside IFQ fishery holding QS or IBQ in excess of the accumulation limits to divest themselves of excess QS (except for widow rockfish QS) or IBQ by November 30, 2015. Widow rockfish QS in excess of the accumulation limit would not be subject to the November 30, 2015, deadline for divestiture because widow rockfish QS may be reallocated as described later in the preamble under the extended moratorium on widow QS transfers.

RAW 1 instituted a delay in the ability of limited entry trawl permit owners in the mothership sector to transfer MS/CV endorsements and CHAs between limited entry trawl permits. The rationale for this action was similar to that for delaying QS transfers in the shorebased IFQ fishery; if permit owners were allowed to transfer ownership of CHAs before the reconsideration took place, then it would be difficult for NMFS to track changes to the initial allocations of whiting and other incidentally caught species. As recommended by the Council, consistent with the recommendation to make no changes to the initial allocations of whiting, NMFS proposes to revise § 660.150(g)(2)(iv)(B) and (C) to allow limited entry trawl permit holders in the mothership sector to request a change (or transfer) of MS/CV endorsement and its associated CHA beginning September 1, 2014.

Require MS/CV-Endorsed Limited Entry Trawl Permit Owners To Divest Themselves of Ownership in Permits in Excess of the Accumulation Limits by August 31, 2016

Delayed implementation of regulations that allow for severability of the MS/CV endorsement and its associated CHA from the limited entry trawl permit in the mothership sector necessitates a corresponding delay to the divestiture periods for those limited entry trawl permit owners with CHA in excess of the accumulation limits for that sector. As recommended by the Council, NMFS proposes to revise § 660.150(g)(3)(i)(D) to require MS/CV-endorsed limited entry trawl permit owners to divest themselves of ownership in permits that have CHA in excess of the accumulation limits by August 31, 2016. Additionally, NMFS proposes that after August 31, 2016, any MS/CV-endorsed permits owned by a person (including any person who has ownership interest in the owner named on the permit) in excess of the accumulation limits will not be issued (renewed) until the permit owner complies with the accumulation limits.

This rule proposes to extend the moratorium on transfer of widow rockfish QS in the IFQ fishery indefinitely pending reconsideration of the allocation of QS for widow rockfish. The Council intends to reconsider widow rockfish QS allocations in the future because widow rockfish is no longer an overfished species and will be managed as a healthy, rebuilt stock beginning in 2013. NMFS proposes this change at § 660.140(d)(3)(ii)(B)(2).

Classification

Pursuant to section 304(b)(1)(A) of the MSA, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the Pacific Coast Groundfish FMP, other provisions of the MSA, and other applicable law, subject to further consideration after public comment. To the extent that the regulations in this rule differ from what was deemed by the Council, NMFS invokes its independent authority under 16 U.S.C. 1855(d).

The Council and NMFS prepared a draft environmental assessment (EA) for the reconsideration of initial whiting allocation that discusses the impact on the human environment of the proposed rule. While the draft EA considers more recent information, the Council recommended and NMFS is proposing the “No Action” alternative which retains the original initial allocations of whiting in the IFQ and mothership fisheries from Amendment 20. A copy of the EA is available on NMFS' Web site at http://www.nwr.noaa.gov/Groundfish-Halibut/Groundfish-Fishery-Management/Trawl-Program/index.cfm. Aspects related to this action were previously discussed in the final environmental impact statement (EIS) for Amendments 20 to the Pacific Coast Groundfish FMP which discussed the structure and features of the original trawl rationalization program. A notice of availability for the final EIS published on June 25, 2010 (75 FR 36386). The Amendment 20 EIS is available on the Council's Web site at http://www.pcouncil.org/ or on NMFS' Web site.

OMB has determined that this action is not significant for purposes of Executive Order 12866.

A Regulatory Impact Review (RIR) was prepared on the action in its entirety and is included as part of the initial regulatory flexibility analysis (IRFA) on the proposed regulatory changes. The IRFA and RIR describe the impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of this section in the preamble and in the SUMMARY section of the preamble. A copy of the IRFA is available from NMFS (seeADDRESSES).

Reconsideration of Initial Allocation of Whiting

The Council considered four alternatives for allocating whiting. The following analysis compares the “status quo” alternative to Alternative 4 as they show greatest differences between the pre-control date fishery and post-control date fishery. The “status quo” alternative allocates whiting using the years 1994 to 2003 for harvesters (shoreside and mothership) and 1998-2004 for processors. Alternative 4 allocates whiting using the years 2000-2010 for both harvesters (shoreside and mothership) and processors. Over the years 1994-2010, there were 65 fishing permit holders that participated in the shoreside fishery and 37 permit holders that participated in the mothership fishery. Over the years 1998 to 2010, there were 16 processors that participated in the fishery and that meet the recent participation criteria of the various alternatives.

Comparing the status quo alternative to Alternative 4 in terms of 2011 ex-vessel revenues, information on the gainers and losers in each of these affected groups can be developed from information in the Draft EA. The allocation of 98,000 mt to the 2011 shorebased whiting fishery was worth approximately $21 million (exvessel value). Based on the status quo allocations, eighty percent of these quota pounds were allocated to fishing permits ($17 million) and 20 percent to the shorebased processors ($4 million). The allocation of 57,000 mt whiting to the whiting mothership catcher vessels was worth $12 million in exvessel value. It is important to note that 2011 was a peak year for the shorebased fishery and a near-peak year for the mothership fishery (see Figure 3-5 of the Draft EA). (Note: although exprocessor or “first wholesale” revenues are higher than exvessel values and would be a better indicator of processing activity levels, data on exprocessor sales were not readily available for use by the Council. A better indicator of the gains and losses by groups would be changes in profits (revenues less operating costs)).

The NWFSC has developed an estimate of economic net revenue that is an indicator of profits. Economic net revenue seeks to measure economic profit, which includes the opportunity costs of operating a commercial fishing vessel. The NWFSC collected and assessed 2008 cost-earning data on vessels participating in the shoreside groundfish fisheries including whiting. Vessels that participate in the shoreside whiting fishery are typically classified as either “whiting” vessels or “Alaska” vessels depending on whether or not they operated in Alaska. Whiting vessels are defined as those with at least $100,000 revenue, of which at least 33% comes from whiting. Alaska vessels are defined at those vessels that earned at least $100,000 in revenue of which at least 50% comes from Alaska fisheries. The average economic net revenue of a whiting vessel in 2008 was $167,457, which represents 19.2% of revenue from all fisheries. Limited entry trawl vessels classified as Alaska vessels had an average economic net revenue of $493,915, 28.3% of the $1,744,793 revenue earned from all sources by these vessels. These estimates on based on revenue and cost information directly related to the operation of a commercial fishing vessel such as those associated with office space. Revenues are from West coast landings, Alaska landings, at-sea deliveries, sale and leasing of permits, chartering for research purposes and other activities related to the operation of the vessel. Compared to other years, these estimates may be high as whiting revenues and overall groundfish revenues were at their highest annual level during the 2001-2010 period during 2008. However, crab revenues during 2008 on the West Coast were at their lowest level since 2003.

Compared with the status quo alternative, under Alternative 4 approximately 17% ($3.7 million) of the allocation to shorebased catcher vessels would be transferred away from the status quo holders; twenty eight permit holders would gain quota share including six permits that did not qualify under the status quo alternative (Table 4-4 of the Draft EA). The largest gain by a single permit holder is 3.3% ($700,000). Alternative 4 would lead to 37 permits losing quota share including 12 permits that would not receive any quota share. The largest loss by a single permit holder would be 2.0% of quota share ($340,000). A total of 41 out of 65 permits will see a change of less than $100,000 (increase or decrease) in revenues in comparing Alternative 4 to the status quo alternative.

In comparing Alternative 4 to the Status Quo alternative for shorebased processors, approximately 3.1% ($660,000) of the allocation to shorebased processors would be transferred away from the status quo holders; nine processors would gain including seven processors that did not qualify under the status quo alternative (Table 4-29 of the Draft EA). The largest gain by a single processor would be 1.3% of quota share ($275,000). Alternative 4 would lead to seven processors losing quota share, including three processors that would not receive any quota share. The largest loss by a single processor would be 0.8% of quota share ($170,000). Nine out of 16 processors would see a change of less than $100,000.

In comparing Alternative 4 to the Status Quo alternative for whiting mothership catcher vessels, approximately 18% ($2 million) of the total catch history assignment would be transferred away from the status quo holders; 16 mothership catcher vessel endorsed permits would gain (Table 4-16 of the Draft EA). No new permits would qualify. The largest gain by a single permit holder would be 4.5% of catch history assignment ($545,000). Alternative 4 would lead to 21 permits with reduced catch history assignments, including 10 permits that would not receive any catch history assignment. The largest loss by a single catch history assignment holder would be 2.7% ($333,000). Eighteen out of 36 permits would see a change of less than $100,000.

However, in terms of net economic benefit to the nation, the effects of the alternatives are similar. According to the PSMFC's Scientific and Statistical Committee: “The way the fisheries are actually prosecuted (geographic location of fishing and landings, timing of fishing, and participants) will in the long-term tend not to be affected by who receives the initial allocation of catch shares.” Over time, the use of the catch shares will likely migrate through leases or sales to the participants who can put them to their most profitable use. This means that the eventual biological, ecological, and economic performance of the fisheries will be relatively independent of the initial allocation of catch shares. It has been the experience of many catch share programs that such transitions occur rather quickly, often within the first few years. As a consequence, the initial allocation of quota shares is not an effective tool to direct fishing or processing effort to particular geographic locations.”

The initial allocation of whiting is a one-time distribution of wealth in the form of quota shares and catch history assignments to members of the fishing industry. The initial allocation is essentially the granting of a capital asset that will affect harvester and processor competitiveness and assist existing participants in the transition to the new management system. To the degree that initial allocation match up with the harvesters that will use the quota, transition costs and disruption will be lessened as the fishery moves to its long-term, more efficient state. Similarly, those processors who receive an initial allocation may experience a boost in their competitive advantage due to the infusion of new wealth (the value of the QS received).

The initial allocation does not affect the long-term efficiency and operation of the fishery. However, liquidity constraints, and perhaps other unknown constraints, may mean that there are some short-term inefficiencies. For example, this one time distribution of wealth may affect expenditures in the communities depending on location and spending patterns of recipients of these quota shares and catch history assignments. The Draft EA provides the following regarding impacts on communities: “The effects of the initial allocations on the distribution of fishing among communities are difficult to predict. Quota is tradable and highly divisible, giving it a fluidity such that it will likely move toward those ports in which profit margins tend to be the highest, regardless of the initial allocations. Where profit margins are similar, allocations given to entities that are already invested in whiting fishery-dependent capital assets are likely to stay with those entities at least in the near term. Similarly, where profit margins are similar, there will likely be some tendency in the near term for quota that is traded to move toward locations where whiting fishery-dependent capital assets already exist. Regardless of how the quota is distributed, vessels may move operations between ports during the year based on the geographic distribution of fishing opportunities. Processors are likely to use their shares in the port in which their facilities are located, however, some processors have facilities in more than one port and so may shift harvest between ports in response to the location of fishing opportunities. At the same time, the recent shift of harvest toward more northern ports appears to be a response to investments in those ports, indicating that the location of fish is not the only factor driving the location of landings. Over the long term, it is expected that operations will move, or quota will be traded, to the ports in which the highest profits can be earned, taking into account all forms of costs such as average distance to fishing grounds and catch and bycatch rates.”

While the discussion above concerns the long run efficiency and operation of the fishery, short run effects matter. The initial allocation of quota shares affects each participant's business operation, investments, and community. With the choice of the status quo alternative over alternatives that reflect more recent history, NMFS and the Council are providing to those who have historically participated in the fishery (the majority of which are also recent participants) are anticipated to have a better chance to benefit from the market processes described above.

RAW 1

This action also would revise several regulations that were delayed on an emergency basis in response to the Court order. RAW 1 delayed the ability to transfer QS and IBQ between QS accounts in the shorebased IFQ fishery, and to the ability to sever mothership/catcher vessel endorsement and its associated catch history assignment (CHA) from limited entry trawl permits in the mothership fishery, pending the outcome of the reconsideration.

NMFS postponed the ability to trade quota shares as well as the ability of mothership catcher vessels to trade their endorsements and catch history assignments separately from their limited entry permits. NMFS also postponed a delay in all trading of QS species/species groups because for many affected parties, their QS allocations (especially for bycatch species) are a composite of whiting-trip calculations and non-whiting trip calculations. Postponing these activities, while NMFS and the Council reconsidered the whiting allocation, minimize confusion and disruption in the fishery from trading quota shares that have not yet been firmly established by regulation. For example, if QS trading was not delayed, QS permit owners would be transferring QS amounts that potentially could change (increase or decrease) after the reconsideration. For similar reasons, NMFS also delayed the ability to transfer a mothership catcher vessel (MS/CV) endorsement and associated catch history assignment from one limited entry trawl permit to another in the mothership sector. The ability to sell or trade a limited entry permit with the endorsement and catch history remains. The use of the catch history assignment to be assigned to a co-op to be fished continues. NMFS intends to announce any changes to the amount of catch history assignments associated with MS/CV-endorsed limited entry trawl permits by April 1, 2013 which is before the May 15 start date for the whiting mothership fishery. These delays were expected to be temporary in nature and to benefit both small and large entities as they help smooth the transition to any changes in how Pacific whiting is allocated, and reduce the uncertainty to existing and potential new holders of these allocations.

With these proposed regulations, those who find themselves with excess QS (except for widow QS) and IBQ, have until November 30, 2015, to divest. MS/CV-endorsed limited entry trawl permit owners will have to divest themselves of ownership in permits in excess of the accumulation limits by August 31, 2016. This rule allows limited entry trawl permit holders in the mothership sector to request a change (or transfer) of MS/CV endorsement and its associated CHA beginning September 1, 2014. Finally, this rule allows transfer of QS or IBQ, except widow rockfish QS, between QS permit holders beginning January 1, 2014.

The Small Business Administration has established size criteria for all major industry sectors in the US, including fish harvesting and fish processing businesses. A business involved in fish harvesting is a small business if it is independently owned and operated and not dominant in its field of operation (including its affiliates) and if it has combined annual receipts not in excess of $4.0 million for all its affiliated operations worldwide. A seafood processor is a small business if it is independently owned and operated, not dominant in its field of operation, and employs 500 or fewer persons on a full-time, part-time, temporary, or other basis, at all its affiliated operations worldwide. A business involved in both the harvesting and processing of seafood products is a small business if it meets the $4.0 million criterion for fish harvesting operations. A wholesale business servicing the fishing industry is a small business if it employs 100 or fewer persons on a full-time, part-time, temporary, or other basis, at all its affiliated operations worldwide. For marinas and charter/party boats, a small business is one with annual receipts not in excess of $7.0 million.

Over the years 1994-2010, there were 65 limited entry trawl fishing permit holders that participated in the shoreside whiting fishery and 37 limited entry trawl fishing permit holders that participated in the mothership fishery. Over the years 1998 to 2010, 16 processors have participated in the fishery. NMFS NWR now collects small business information as part of its permit renewal processes. Based on that information and on other information, there are three large companies associated with the 16 processors and 13 small companies. Sixteen of the limited entry trawl permits that participated in the whiting fishery are associated with large companies and 49 of these permits are associated with small companies. In the mothership fishery 14 catcher vessel permits are associated with large companies and 23 with small companies.

No Federal rules have been identified that duplicate, overlap, or conflict with the alternatives. Public comment is hereby solicited, identifying such rules. A copy of this analysis is available from NMFS (see ADDRESSES).

NMFS issued a Supplemental Biological Opinion on March 11, 2006, concluding that neither the higher observed bycatch of Chinook in the 2005 whiting fishery nor new data regarding salmon bycatch in the groundfish bottom trawl fishery required a reconsideration of its prior “no jeopardy” conclusion. NMFS also reaffirmed its prior determination that implementation of the Groundfish PCGFMP is not likely to jeopardize the continued existence of any of the affected ESUs. Lower Columbia River coho (70 FR 37160, June 28, 2005) and Oregon Coastal coho (73 FR 7816, February 11, 2008) were recently relisted as threatened under the ESA. The 1999 biological opinion concluded that the bycatch of salmonids in the Pacific whiting fishery were almost entirely Chinook salmon, with little or no bycatch of coho, chum, sockeye, and steelhead.

On December 7, 2012, NMFS completed a biological opinion concluding that the groundfish fishery is not likely to jeopardize non-salmonid marine species including listed eulachon, green sturgeon, humpback whales, Steller sea lions, and leatherback sea turtles. The opinion also concludes that the fishery is not likely to adversely modify critical habitat for green sturgeon and leatherback sea turtles. An analysis included in the same document as the opinion concludes that the fishery is not likely to adversely affect green sea turtles, olive ridley sea turtles, loggerhead sea turtles, sei whales, North Pacific right whales, blue whales, fin whales, sperm whales, Southern Resident killer whales, Guadalupe fur seals, or the critical habitat for Steller sea lions.

As Steller sea lions and humpback whales are also protected under the Marine Mammal Protection Act, incidental take of these species from the groundfish fishery must be addressed under MMPA section 101(a)(5)(E). On February 27, 2012, NMFS published notice that the incidental taking of Steller sea lions in the West Coast groundfish fisheries was addressed in NMFS' December 29, 2010, Negligible Impact Determination (NID) and this fishery has been added to the list of fisheries authorized to take Steller sea lions (77 FR 11493, Feb. 27, 2012). NMFS is currently developing MMPA authorization for the incidental take of humpback whales in the fishery.

On November 21, 2012, the U.S. Fish and Wildlife Service (FWS) issued a biological opinion concluding that the groundfish fishery will not jeopardize the continued existence of the short-tailed albatross. The (FWS) also concurred that the fishery is not likely to adversely affect the marbled murrelet, California least tern, southern sea otter, bull trout, nor bull trout critical habitat.

This proposed rule was developed after meaningful consultation and collaboration, through the Council process, with the tribal representative on the Council. The proposed regulations have no direct effect on the tribes.

(2) Transfer of QS or IBQ between QS accounts. Beginning January 1, 2014, QS permit owners may transfer QS (except for widow rockfish QS) or IBQ to another QS permit owner, subject to accumulation limits and approval by NMFS. QS or IBQ is transferred as a percent, divisible to one-thousandth of a percent (i.e., greater than or equal to 0.001%). Until January 1, 2014, QS or IBQ cannot be transferred to another QS permit owner, except under U.S. court order or authorization and as approved by NMFS. QS or IBQ may not be transferred between December 1 through December 31 each year. QS or IBQ may not be transferred to a vessel account. The prohibition on transferability of widow rockfish QS is extended indefinitely pending final action on reallocation of widow rockfish QS.

(4) * * *

(v) Divestiture. Accumulation limits will be calculated by first calculating the aggregate non-whiting QS limit and then the individual species QS or IBQ control limits. For QS permit owners (including any person who has ownership interest in the owner named on the permit) that are found to exceed the accumulation limits during the initial issuance of QS permits, an adjustment period will be provided after which they will have to completely divest their QS or IBQ in excess of the accumulation limits. QS or IBQ will be issued for amounts in excess of accumulation limits only for owners of limited entry permits as of November 8, 2008, if such ownership has been registered with NMFS by November 30, 2008. The owner of any permit acquired after November 8, 2008, or if acquired earlier, not registered with NMFS by November 30, 2008, will only be eligible to receive an initial allocation for that permit of those QS or IBQ that are within the accumulation limits; any QS or IBQ in excess of the accumulation limits will be redistributed to the remainder of the initial recipients of QS or IBQ in proportion to each recipient's initial allocation of QS or IBQ for each species. Any person that qualifies for an initial allocation of QS or IBQ in excess of the accumulation limits will be allowed to receive that allocation, but must divest themselves of the QS (except for widow rockfish QS) or IBQ in excess of the accumulation limits by November 30, 2015. Holders of QS or IBQ in excess of the control limits may receive and use the QP or IBQ pounds associated with that excess, up to the time their divestiture is completed. Once the divestiture period is completed, any QS or IBQ held by a person (including any person who has ownership interest in the owner named on the permit) in excess of the accumulation limits will be revoked and redistributed to the remainder of the QS or IBQ owners in proportion to the QS or IBQ. On or about January 1, 2016, NMFS will redistribute the revoked QS or IBQ excess percentages to the QS or IBQ owners in proportion to their QS or IBQ holdings based on ownership records as of January 1, 2016. No compensation will be due for any revoked shares.

(B) Application. NMFS will begin accepting applications for a change in MS/CV endorsement registration beginning September 1, 2014. A request for a change in MS/CV endorsement registration must be made between September 1 and December 31 of each year. Any transfer of MS/CV endorsement and its associated CHA to another limited entry trawl permit must be requested using a Change in Registration of a Mothership/Catcher Vessel Endorsement/Catch History Assignment Application form and the permit owner or an authorized representative of the permit owner must certify that the application is true and correct by signing and dating the form. In addition, the form must be notarized, and the permit owner selling the MS/CV endorsement and its CHA must provide the sale price of the MS/CV endorsement and its associated CHA. If any assets in addition to the MS/CV endorsement and its associated CHA are included in the sale price, those assets must be itemized and described.

(C) Effective date. Any change in MS/CV endorsement registration from one limited entry trawl permit to another limited entry trawl permit will be effective on January 1 in the year following the application period.

(3) * * *

(i) * * *

(D) Divestiture. For MS/CV-endorsed permit owners that are found to exceed the accumulation limits during the initial issuance of MS/CV-endorsed permits, an adjustment period will be provided after which they will have to completely divest of ownership in permits that exceed the accumulation limits. Any person that NMFS determines, as a result of the initial issuance of MS/CV-endorsed permits, to own in excess of 20 percent of the total catch history assignment in the MS Coop Program applying the individual and collective rule described at paragraph (g)(3)(i)(A) of this section will be allowed to receive such permit(s), but must divest themselves of the excess ownership by August 31, 2016. Owners of such permit(s) may receive and use the MS/CV-endorsed permit(s), up to the time their divestiture is completed. After August 31, 2016, any MS/CV-endorsed permits owned by a person (including any person who has ownership interest in the owner named on the permit) in excess of the accumulation limits will not be issued (renewed) until the permit owner complies with the accumulation limits.

The Office of the Under Secretary for Food Safety, U.S. Department of Agriculture (USDA), Food Safety and Inspection Service (FSIS), is sponsoring a public meeting on January 24, 2013. The objective of the public meeting is to provide information and receive public comments on agenda items and draft United States (U.S.) positions that will be discussed at the 20th Session of the Codex Committee on Food Import and Export Inspection and Certification Systems (CCFICS) of the Codex Alimentarius Commission (Codex), which will be held in Chiang Mai, Thailand, February 18-22, 2013. The Under Secretary for Food Safety recognizes the importance of providing interested parties the opportunity to obtain background information on the 20th Session of the CCFICS and to address items on the agenda.

DATES:

The public meeting is scheduled for Thursday, January 24, 2013, from 2:00-4:00 p.m.

ADDRESSES:

The public meeting will be held in the Jamie L. Whitten Building, USDA, 1400 Independence Avenue SW., Room 107-A, Washington, DC 20250. Documents related to the 20th Session of the CCFICS will be accessible via the World Wide Web at the following address: http://www.codexalimentarius.org/meetings-reports/en.

Mary Stanley, U.S. Delegate to the 20th Session of the CCFICS invites U.S. interested parties to submit their comments electronically to the following email address Mary.Stanley@fsis.usda.gov.

Call-In Number:

If you wish to participate in the public meeting for the 20th Session of the CCFICS by conference call, please use the call in number and participant code listed below.

Codex was established in 1963 by two United Nations organizations, the Food and Agriculture Organization (FAO) and the World Health Organization (WHO). Through adoption of food standards, codes of practice, and other guidelines developed by its committees, and by promoting their adoption and implementation by governments, Codex seeks to protect the health of consumers and ensure fair practices in the food trade.

The CCFICS Committee is responsible for

(a) Developing principles and guidelines for food import and export inspection and certification systems with a view to harmonizing methods and procedures which protect the health of consumers, ensure fair trading practices, and facilitate international trade in foodstuffs

(b) Developing principles and guidelines for the application of measures by the competent authorities of exporting and importing countries to provide assurance where necessary that foodstuffs comply with requirements, especially statutory health requirements

(c) Developing guidelines for the utilization, as and when appropriate, of quality assurance systems to ensure that foodstuffs conform with requirements and promoting the recognition of these systems in facilitating trade in food products under bilateral/multilateral arrangements by countries

(d) Developing guidelines and criteria with respect to format, declarations and language of such official certificates as countries may require with a view towards international harmonization

(e) Making recommendations for information exchange in relation to food import/export control

(f) Consulting as necessary with other international groups working on matters related to food inspection and certification systems

(g) Considering other matters assigned to it by Codex in relation to food inspection and certification systems

The Committee is hosted by Australia.

Issues To Be Discussed at the Public Meeting

The following items on the agenda for the 20th Session of the CCFICS will be discussed during the public meeting:

• Matters referred to the CCFICS by Codex and other Codex Committees and Task Forces

• Activities of the FAO and WHO relevant to the work of the CCFICS

• Activities of other international organizations relevant to the work of the CCFICS

• Draft and proposed draft principles and guidelines for national food control systems

• Discussion paper on monitoring regulatory performance of national food control systems

• Discussion paper on the need for further guidance on food safety emergencies and on the analysis of proposed change to the CCFICS texts on emergencies and rejections to address feed

• Other business and future work

Each issue listed will be fully described in documents distributed, or to be distributed, by the Secretariat prior to the meeting. Members of the public may access copies of these documents (see ADDRESSES).

Public Meeting

At the January 24, 2013, public meeting, draft U.S. positions on the agenda items will be described and discussed, and attendees will have the opportunity to pose questions and offer comments. Written comments may be offered at the meeting or sent to Mary Stanley, U.S. Delegate for the 20th Session of the CCFICS (see ADDRESSES). Written comments should state that they relate to activities of the 20th Session of the CCFICS.

Additional Public Notification

FSIS will announce this notice online through the FSIS Web page located at http://www.fsis.usda.gov/regulations_&_policies/Federal_Register_Notices/index.asp.

FSIS will also make copies of this Federal Register publication available through the FSIS Constituent Update, which is used to provide information regarding FSIS policies, procedures, regulations, Federal Register notices, FSIS public meetings, and other types of information that could affect or would be of interest to constituents and stakeholders. The Update is communicated via Listserv, a free electronic mail subscription service for industry, trade groups, consumer interest groups, health professionals, and other individuals who have asked to be included. The Update is also available on the FSIS Web page. In addition, FSIS offers an electronic mail subscription service which provides automatic and customized access to selected food safety news and information. This service is available at http://www.fsis.usda.gov/News_&_Events/Email_Subscription/. Options range from recalls to export information to regulations, directives, and notices. Customers can add or delete subscriptions themselves, and have the option to password protect their accounts.

USDA Nondiscrimination Statement

USDA prohibits discrimination in all its programs and activities on the basis of race, color, national origin, gender, religion, age, disability, political beliefs, sexual orientation, and marital or family status. (Not all prohibited bases apply to all programs.) Persons with disabilities who require alternative means for communication of program information (Braille, large print, or audiotape) should contact USDA's Target Center at 202-720-2600 (voice and TTY).

To file a written complaint of discrimination, write USDA, Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue SW., Washington, DC 20250-9410 or call 202-720-5964 (voice and TTY). USDA is an equal opportunity provider and employer.

On July 11, 2011, in the U.S. District Court, District of Maryland, Boniface U. Ibe (“Ibe”) was convicted of violating Section 38 of the Arms Export Control Act (22 U.S.C. 2778 (2000)) (“AECA”) and the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq. (2000)) (“IEEPA”). Specifically, Ibe was convicted of knowingly and willfully exporting, causing to be exported, and attempting to export from the United States to Nigeria, defense articles included on the United States Munitions List, namely, firearms and ammunition, without having first obtained from the Department of State a license for such export or written authorization for such export, in violation of AECA. Ibe was also convicted of knowingly and willfully exporting, causing to exported, and attempting to export from the United States to Nigeria shotguns without having first obtained a validated export license from the United States Department of Commerce, in violation of IEEPA. Ibe was sentenced to five months in prison followed by 10 months of supervised release. Ibe is also listed on the U.S. Department of State Debarred List.

Section 766.25 of the Export Administration Regulations (“EAR” or “Regulations”)1 provides, in pertinent part, that “[t]he Director of the Office of Exporter Services, in consultation with the Director of the Office of Export Enforcement, may deny the export privileges of any person who has been convicted of a violation of the [Export Administration Act (“EAA”)], the EAR, or any order, license or authorization issued thereunder; any regulation, license, or order issued under the International Emergency Economic Powers Act (50 U.S.C. 1701-1706); 18 U.S.C. 793, 794 or 798; section 4(b) of the Internal Security Act of 1950 (50 U.S.C. 783(b)), or section 38 of the Arms Export Control Act (22 U.S.C. 2778).” 15 CFR 766.25(a); see also Section 11(h) of the EAA, 50 U.S.C. app. § 2410(h). The denial of export privileges under this provision may be for a period of up to 10 years from the date of the conviction. 15 CFR 766.25(d); see also 50 U.S.C. app. § 2410(h). In addition, Section 750.8 of the Regulations states that the Bureau of Industry and Security's Office of Exporter Services may revoke any Bureau of Industry and Security (“BIS”) licenses previously issued in which the person had an interest in at the time of his conviction.

1 The Regulations are currently codified in the Code of Federal Regulations at 15 CFR Parts 730-774 (2012). The Regulations issued pursuant to the Export Administration Act (50 U.S.C. app. §§ 2401-2420 (2000)) (“EAA”). Since August 21, 2001, the EAA has been in lapse and the President, through Executive Order 13222 of August 17, 2001 (3 CFR, 2001 Comp. 783 (2002)), which has been extended by successive Presidential Notices, the most recent being that of August 15, 2012 (77 FR 49699 (Aug. 16, 2012)), has continued the Regulations in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701, et seq. (2000)).

I have received notice of Ibe's conviction for violating AECA and IEEPA, and have provided notice and an opportunity for Ibe to make a written submission to BIS, as provided in Section 766.25 of the Regulations. I have not received a submission from Ibe. Based upon my review and consultations with BIS's Office of Export Enforcement, including its Director, and the facts available to BIS, I have decided to deny Ibe's export privileges under the Regulations for a period of 10 years from the date of Ibe's conviction. I have also decided to revoke all licenses issued pursuant to the Act or Regulations in which Ibe had an interest at the time of his conviction.

Accordingly, it is hereby

Ordered

I. Until July 11, 2021, Boniface U. Ibe, with a last known address at: 11202 Trevor Court, Mitchellville, MD 20721, and when acting for or on behalf of Ibe, his representatives, assigns, agents or employees (the “Denied Person”), may not, directly or indirectly, participate in any way in any transaction involving any commodity, software or technology (hereinafter collectively referred to as “item”) exported or to be exported from the United States that is subject to the Regulations, including, but not limited to:

A. Applying for, obtaining, or using any license, License Exception, or export control document;

B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations; or

C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations.

II. No person may, directly or indirectly, do any of the following:

A. Export or reexport to or on behalf of the Denied Person any item subject to the Regulations;

B. Take any action that facilitates the acquisition or attempted acquisition by the Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the Denied Person acquires or attempts to acquire such ownership, possession or control;

C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the Denied Person of any item subject to the Regulations that has been exported from the United States;

D. Obtain from the Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or

E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by the Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.

III. After notice and opportunity for comment as provided in Section 766.23 of the Regulations, any other person, firm, corporation, or business organization related to Ibe by affiliation, ownership, control or position of responsibility in the conduct of trade or related services may also be subject to the provisions of this Order if necessary to prevent evasion of the Order.

IV. This Order does not prohibit any export, reexport, or other transaction subject to the Regulations where the only items involved that are subject to the Regulations are the foreign-produced direct product of U.S.-origin technology.

V. This Order is effective immediately and shall remain in effect until July 11, 2021.

VI. In accordance with Part 756 of the Regulations, Ibe may file an appeal of this Order with the Under Secretary of Commerce for Industry and Security. The appeal must be filed within 45 days from the date of this Order and must comply with the provisions of Part 756 of the Regulations.

VII. A copy of this Order shall be delivered to the Ibe. This Order shall be published in the Federal Register.

On January 3, 2011, in the U.S. District Court, District of Maryland, Emenike Charles Nwankwoala (“Nwankwoala”) was convicted of violating Section 38 of the Arms Export Control Act (22 U.S.C. 2778 (2000)) (“AECA”) and the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq. (2000)) (“IEEPA”). Specifically, Nwankwoala was convicted of knowingly and willfully exporting, causing to be exported, and attempting to export from the United States to Nigeria, defense articles included on the United States Munitions List, namely, firearms and ammunition, without having first obtained from the Department of State a license for such export or written authorization for such export, in violation of AECA. Nwankwoala was also convicted of knowingly and willfully exporting, causing to exported, and attempting to export from the United States to Nigeria shotguns without having first obtained a validated export license from the United States Department of Commerce, in violation of IEEPA. Nwankwoala was sentenced to 37 months in prison followed by 24 months of supervised release. Nwankwoala is also listed on the U.S. Department of State Debarred List.

Section 766.25 of the Export Administration Regulations (“EAR” or “Regulations”)1 provides, in pertinent part, that “[t]he Director of the Office of Exporter Services, in consultation with the Director of the Office of Export Enforcement, may deny the export privileges of any person who has been convicted of a violation of the [Export Administration Act (“EAA”)], the EAR, or any order, license or authorization issued thereunder; any regulation, license, or order issued under the International Emergency Economic Powers Act (50 U.S.C. 1701-1706); 18 U.S.C. 793, 794 or 798; section 4(b) of the Internal Security Act of 1950 (50 U.S.C. 783(b)), or section 38 of the Arms Export Control Act (22 U.S.C. 2778).” 15 CFR 766.25(a); see also Section 11(h) of the EAA, 50 U.S.C. app. § 2410(h). The denial of export privileges under this provision may be for a period of up to 10 years from the date of the conviction. 15 CFR 766.25(d); see also 50 U.S.C. app. § 2410(h). In addition, Section 750.8 of the Regulations states that the Bureau of Industry and Security's Office of Exporter Services may revoke any Bureau of Industry and Security (“BIS”) licenses previously issued in which the person had an interest in at the time of his conviction.

1 The Regulations are currently codified in the Code of Federal Regulations at 15 CFR Parts 730-774 (2012). The Regulations issued pursuant to the Export Administration Act (50 U.S.C. app. §§ 2401-2420 (2000)) (“EAA”). Since August 21, 2001, the EAA has been in lapse and the President, through Executive Order 13222 of August 17, 2001 (3 CFR, 2001 Comp. 783 (2002)), which has been extended by successive Presidential Notices, the most recent being that of August 15, 2012 (77 FR 49699 (Aug. 16, 2012)), has continued the Regulations in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701, et seq. (2000)).

I have received notice of Nwankwoala's conviction for violating AECA and IEEPA, and have provided notice and an opportunity for Nwankwoala to make a written submission to BIS, as provided in Section 766.25 of the Regulations. I have received a submission from Nwankwoala. Based upon my review and consultations with BIS's Office of Export Enforcement, including its Director, and the facts available to BIS, I have decided to deny Nwankwoala's export privileges under the Regulations for a period of 10 years from the date of Nwankwoala's conviction. I have also decided to revoke all licenses issued pursuant to the Act or Regulations in which Nwankwoala had an interest at the time of his conviction.

Accordingly, it is hereby

Ordered

I. Until January 3, 2021, Emenike Charles Nwankwoala, with last known addresses at: currently incarcerated at: Inmate Number 50756-037, FCI Elkton, Federal Correctional Institution, P.O. Box 10, Lisbon, OH 44432, and with an address at: 15028 Courtland Place, Laurel, MD 20707, and when acting for or on behalf of Nwankwoala, his representatives, assigns, agents or employees (the “Denied Person”), may not, directly or indirectly, participate in any way in any transaction involving any commodity, software or technology (hereinafter collectively referred to as “item”) exported or to be exported from the United States that is subject to the Regulations, including, but not limited to:

A. Applying for, obtaining, or using any license, License Exception, or export control document;

B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations; or

C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations.

II. No person may, directly or indirectly, do any of the following:

A. Export or reexport to or on behalf of the Denied Person any item subject to the Regulations;

B. Take any action that facilitates the acquisition or attempted acquisition by the Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the Denied Person acquires or attempts to acquire such ownership, possession or control;

C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the Denied Person of any item subject to the Regulations that has been exported from the United States;

D. Obtain from the Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or

E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by the Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.

III. After notice and opportunity for comment as provided in Section 766.23 of the Regulations, any other person, firm, corporation, or business organization related to Nwankwoala by affiliation, ownership, control or position of responsibility in the conduct of trade or related services may also be subject to the provisions of this Order if necessary to prevent evasion of the Order.

IV. This Order does not prohibit any export, reexport, or other transaction subject to the Regulations where the only items involved that are subject to the Regulations are the foreign-produced direct product of U.S.-origin technology.

V. This Order is effective immediately and shall remain in effect until January 3, 2021.

VI. In accordance with Part 756 of the Regulations, Nwankwoala may file an appeal of this Order with the Under Secretary of Commerce for Industry and Security. The appeal must be filed within 45 days from the date of this Order and must comply with the provisions of Part 756 of the Regulations.

VII. A copy of this Order shall be delivered to the Nwankwoala. This Order shall be published in the Federal Register.

On November 8, 2011, in the U.S. District Court, Middle District of Florida Tampa Division, Henson Chua (“Chua”) was convicted of violating Section 38 of the Arms Export Control Act (22 U.S.C. 2778 (2000)) (“AECA”). Specifically, Chua was convicted of knowingly and willfully causing the temporary import into the United States, an unmanned aerial vehicle, which was designated as a defense article on the United States Munitions List, without having first obtained from the U.S. Department of State a license or written authorization for such temporary import.

Chua was sentenced to time served followed by three years of supervised release. Chua was ordered to pay a fine of $13,000 and a special assessment of $100.00. Chua is also listed on the U.S. Department of State Debarred List.

Section 766.25 of the Export Administration Regulations (“EAR” or “Regulations”) 1 provides, in pertinent part, that “[t]he Director of the Office of Exporter Services, in consultation with the Director of the Office of Export Enforcement, may deny the export privileges of any person who has been convicted of a violation of the EAA, the EAR, of any order, license or authorization issued thereunder; any regulation, license, or order issued under the International Emergency Economic Powers Act (50 U.S.C. 1701-1706); 18 U.S.C. 793, 794 or 798; section 4(b) of the Internal Security Act of 1950 (50 U.S.C. 783(b)), or section 38 of the Arms Export Control Act (22 U.S.C. 2778).” 15 CFR 766.25(a); see also Section 11(h) of the EAA, 50 U.S.C. app. § 2410(h). The denial of export privileges under this provision may be for a period of up to 10 years from the date of the conviction. 15 CFR 766.25(d); see also 50 U.S.C. app. § 2410(h). In addition, Section 750.8 of the Regulations states that the Bureau of Industry and Security's Office of Exporter Services may revoke any Bureau of Industry and Security (“BIS”) licenses previously issued in which the person had an interest in at the time of his conviction.

1 The Regulations are currently codified in the Code of Federal Regulations at 15 CFR parts 730-774 (2012). The Regulations issued pursuant to the EAA (50 U.S.C. app. §§ 2401-2420 (2000)). Since August 21, 2001, the Export Administration Act (“EAA”) has been in lapse and the President, through Executive Order 13222 of August 17, 2001 (3 CFR, 2001 Comp. 783 (2002)), which has been extended by successive Presidential Notices, the most recent being that of August 12, 2012 (77 FR 49699, August 16, 2012), has continued the Regulations in effect under International Emergency Economics Powers Act (50 U.S.C. 1701, et seq. (2000)).

I have received notice of Chua's conviction for violating the AECA, and have provided notice and an opportunity for Chua to make a written submission to BIS, as provided in Section 766.25 of the Regulations. I have received a submission from Chua. Based upon my review and consultations with BIS's Office of Export Enforcement, including its Director, and the facts available to BIS, I have decided to deny Chua's export privileges under the Regulations for a period of five years from the date of Chua's conviction. I have also decided to revoke all licenses issued pursuant to the Act or Regulations in which Chua had an interest at the time of his conviction.

B. Denial of Export Privileges of Related Person

Pursuant to Sections 766.25(h) and 766.23 of the Regulations, the Director of BIS's Office of Exporter Services, in consultation with the Director of BIS's Office of Export Enforcement, may take action to name persons related to a Respondent by ownership, control, position of responsibility, affiliation, or other connection in the conduct of trade or business in order to prevent evasion of a denial order. Celltron is the name of the company that Chua utilized in his dealing with Immigration and Customs Enforcement (“ICE”), Homeland Security Investigations (“HIS”). He used this company as the sender of the goods to HIS/ICE. Therefore Celltron is related to Chua by ownership, control, position of responsibility, affiliation, or other connection in the conduct of trade or business. BIS believes that naming Celltron as a related person to Chua is necessary to avoid evasion of the denial order against Chua.

As provided in Section 766.23 of the Regulations, I gave notice to Celltron that its export privileges under the Regulations could be denied for up to 10 years due to its relationship with Chua and that BIS believes naming it as a person related to Chua would be necessary to prevent evasion of a denial order imposed against Chua. In providing such notice, I gave Celltron an opportunity to oppose its addition to the Chua Denial Order as a related party. Having received a submission from Chua, I have decided, following consultations with BIS's Office of Export Enforcement, including its Director, to name Celltron as a Related Person to the Chua Denial Order, thereby denying its export privileges for five years from the date of Chua's conviction.

I have also decided to revoke all licenses issued pursuant to the Act or Regulations in which the Related Person had an interest at the time of Chua's conviction. The five-year denial period will end on November 8, 2016.

Accordingly, it is hereby

Ordered

I. Until November 8, 2016, Henson Chua, with last known addresses at: 2945 Somerset Place, San Marino, CA 91108, and 27 Cambridge Street, Hillsborough Village, Muntin Lupa City, Philippines, 1780, and when acting for or on behalf of Chua, his representatives, assigns, agents or employees (collectively referred to hereinafter as the “Denied Person”), and the following person related to the Denied Person as defined by Section 766.23 of the Regulations: Celltron Marketing Company, a.k.a. Celltron Mktg. Co., with a last known address at: 47A G. Araneta Ave, Quezon City, MM Philippines, 1105, and when acting for or on behalf of Celltron, its successors or assigns, agents, or employees (“the Related Person”) (together, the Denied Person and the Related Person are “Persons Subject to this Order”), may not, directly or indirectly, participate in any way in any transaction involving any commodity, software or technology (hereinafter collectively referred to as “item”) exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations, including but not limited to:

A. Applying for, obtaining, or using any license, License Exception, or export control document;

B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations; or

C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations.

II. No person may, directly or indirectly, do any of the following:

A. Export or reexport to or on behalf of the Persons Subject to this Order any item subject to the Regulations;

B. Take any action that facilitates the acquisition or attempted acquisition by the Persons Subject to this Order of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the Persons Subject to this Order acquire or attempt to acquire such ownership, possession or control;

C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the Persons Subject to this Order of any item subject to the Regulations that has been exported from the United States;

D. Obtain from the Persons Subject to this Order in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or

E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Persons Subject to this Order, or service any item, of whatever origin, that is owned, possessed or controlled by the Persons Subject to this Order if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.

III. In addition to the Related Person named above, after notice and opportunity for comment as provided in section 766.23 of the Regulations, any other person, firm, corporation, or business organization related to the Denied Person by affiliation, ownership, control, or position of responsibility in the conduct of trade or related services may also be made subject to the provisions of this Order if necessary to prevent evasion of the Order.

IV. This Order does not prohibit any export, reexport, or other transaction subject to the Regulations where the only items involved that are subject to the Regulations are the foreign-produced direct product of U.S.-origin technology.

V. This Order is effective immediately and shall remain in effect until November 8, 2016.

VI. In accordance with Part 756 of the Regulations, Chua may file an appeal of this Order with the Under Secretary of Commerce for Industry and Security. The appeal must be filed within 45 days from the date of this Order and must comply with the provisions of Part 756 of the Regulations.

VII. In accordance with Part 756 of the Regulations, the Related Person may also file an appeal of this Order with the Under Secretary of Commerce for Industry and Security. The appeal must be filed within 45 days from the date of this Order and must comply with the provisions of Part 756 of the Regulations.

VIII. A copy of this Order shall be delivered to the Denied Person and the Related Person. This Order shall be published in the Federal Register.

The Department of Commerce (the Department) is rescinding its administrative review of the antidumping duty order on polyethylene retail carrier bags (PRCBs) from the People's Republic of China (PRC) for the period August 1, 2011, through July 31, 2012.

On August 1, 2012, we published a notice of opportunity to request an administrative review of the antidumping duty order on PRCBs from the PRC for the period of review August 1, 2011, through July 31, 2012.1 On August 31, 2012, the petitioners, the Polyethylene Retail Carrier Bag Committee and its individual members, Hilex Poly Co., LLC, and Superbag Corporation, requested an administrative review of the order with respect to Dongguan Nozawa Plastics Products Co., Ltd. and United Power Packaging, Ltd. (collectively, Nozawa).2 On September 26, 2012, in accordance with section 751(a) of the Tariff Act of 1930, as amended (Act) and 19 CFR 351.221(c)(1)(i), we initiated an administrative review of the order on PRCBs from the PRC with respect to Nozawa.3

On November 21, 2012, the petitioners withdrew their request for an administrative review.4

4See letter from the petitioners to the Department, “Polyethylene Retail Carrier Bags from the People's Republic of China: Withdrawal of Request for Administrative Review” (November 21, 2012).

Rescission of Review

Pursuant to 19 CFR 351.213(d)(1), the Department will rescind an administrative review, “in whole or in part, if a party that requested a review withdraws the request within 90 days of the date of publication of notice of initiation of the requested review.” The petitioners withdrew their request for review within the 90-day time limit. Because we received no other requests for review of Nozawa and no other requests for the review of the order on PRCBs from the PRC with respect to other companies subject to the order, we are rescinding the administrative review of the order in full. This rescission is in accordance with 19 CFR 351.213(d)(1).

Accordingly, the Department intends to issue appropriate assessment instructions to U.S. Customs and Border Protection 15 days after publication of this notice.

Notification to Importer

This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.

Notification Regarding Administrative Protective Order

This notice also serves as a final reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under an APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.

This notice is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.213 (d)(4).

The Department of Commerce (Department) has determined that a request for a new shipper review (NSR) under the antidumping duty order on fresh garlic from the People's Republic of China (PRC) meets the statutory and regulatory requirements for initiation. The period of review (POR) is November 1, 2011, through October 31, 2012.

The Department published the antidumping duty order on fresh garlic from the PRC in the Federal Register on November 16, 1994.1 On November 27, 2012, the Department received a timely NSR request from Shijiazhuang Goodman Trading Co., Ltd. (Goodman) in accordance with section 751(a)(2)(B)(i) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.214(c).

Pursuant to the requirements set forth in 19 CFR 351.214(b), Goodman certified that it is the exporter and Jinxiang Zhongtian Business Co., Ltd. (a.k.a. Jinxiang Zhongtian Trade Co., Ltd.) (Zhongtian) certified that it is the producer of the fresh garlic exported by Goodman. Moreover, Goodman and Zhongtian each certified that: (1) They did not export fresh garlic for sale to the United States during the period of investigation (POI); (2) since the investigation was initiated, they have never been affiliated with any exporter or producer who exported the subject merchandise to the United States during the POI, including those not individually examined during the investigation; and (3) their export activities are not controlled by the central government of the PRC. In addition, Goodman submitted documentation establishing the following: (1) The date on which fresh garlic was first entered; (2) the volume of that and subsequent shipments; and (3) the date of the first sale to an unaffiliated customer in the United States.

The Department queried the database of U.S. Customs and Border Protection (CBP) in an attempt to confirm that shipments reported by Goodman had entered the United States for consumption and that liquidation had been properly suspended for antidumping duties. The information which the Department examined was consistent with that provided by Goodman in its request.2

2See Memorandum to The File regarding “Initiation of Antidumping Duty New Shipper Review of Fresh Garlic from the People's Republic of China: Shijiazhuang Goodman Trading Co., Ltd.” dated concurrently with this notice.

Period of Review

In accordance with 19 CFR 351.214(g)(1)(i)(A), the POR for an NSR initiated in the month immediately following the anniversary month will be the twelve-month period immediately preceding the anniversary month. Therefore, the POR for this NSR is November 1, 2011, through October 31, 2012. The sales and entries into the United States of subject merchandise exported by Goodman and produced by Zhongtian occurred during this twelve-month POR.

Initiation of New Shipper Review

Pursuant to section 751(a)(2)(B) of the Act and 19 CFR 351.214(b), and the information on the record, the Department finds that Goodman's request meets the threshold requirements for initiation of an NSR. The Department intends to issue the preliminary result within 180 days after the date on which the review is initiated, and the final results within 90 days after the date on which we issue the preliminary results.3

3See section 751(a)(2)(B)(iv) of the Act.

It is the Department's usual practice, in cases involving non-market economies, to require that a company seeking to establish eligibility for an antidumping duty rate separate from the country-wide rate (i.e., a separate rate) provide evidence of de jure and de facto absence of government control over the company's export activities. Accordingly, the Department will issue a questionnaire to Goodman that includes a separate rate section. The review will proceed if the response provides sufficient indication that the exporter and producer are not subject to either de jure or de facto government control with respect to their export of fresh garlic.

The Department will instruct CBP to allow, at the option of the importer, the posting, until the completion of the review, of a bond or security in lieu of a cash deposit for certain entries of the subject merchandise from Goodman in accordance with section 751(a)(2)(B)(iii) of the Act and 19 CFR 351.214(e). Specifically, the bonding privilege will only apply to entries of subject merchandise exported by Goodman and produced by Zhongtian, the sales of which are the basis for this NSR request.

Interested parties requiring access to proprietary information in this NSR should submit applications for disclosure under administrative protective order in accordance with 19 CFR 351.305 and 351.306.

This initiation and notice are in accordance with section 751(a)(2)(B) of the Act and 19 CFR 351.214 and 351.221(c)(1)(i).

The Information Security and Privacy Advisory Board (ISPAB) will meet Wednesday, February 13, 2013, from 8:00 a.m. until 5:00 p.m. Eastern Time, Thursday, February 14, 2013, from 8:00 a.m. until 5:00 p.m. Eastern Time, and Friday, February 15, 2013, from 8:00 a.m. until 12:00 p.m. Eastern Time. All sessions will be open to the public.

DATES:

The meeting will be held on Wednesday, February 13, 2013, from 8:00 a.m. until 5:00 p.m. Eastern Time, Thursday, February 14, 2013, from 8:00 a.m. until 5:00 p.m. Eastern Time, and Friday, February 15, 2013, from 8:00 a.m. until 12:00 p.m. Eastern Time.

ADDRESSES:

The meeting will take place at the United States Access Board Conference Room, 1331 F Street NW., Suite 800, Washington, DC 20004.

Pursuant to the Federal Advisory Committee Act, as amended, 5 U.S.C. App., notice is hereby given that the Information Security and Privacy Advisory Board (ISPAB) will meet Wednesday, February 13, 2013, from 8:00 a.m. until 5:00 p.m. Eastern Time, Thursday, February 14, 2013, from 8:00 a.m. until 5:00 p.m. Eastern Time, and Friday, February 15, 2013, from 8:00 a.m. until 12:00 p.m. Eastern Time. All sessions will be open to the public. The ISPAB is authorized by 15 U.S.C. 278g-4, as amended, and advises the Secretary of Commerce, the Director of the Office of Management and Budget, and the Director of NIST on security and privacy issues pertaining to federal computer systems. Details regarding the ISPAB's activities are available at http://csrc.nist.gov/groups/SMA/ispab/index.html.

Note that agenda items may change without notice because of possible unexpected schedule conflicts of presenters. The final agenda will be posted on the Web site indicated above. Seating will be available for the public and media. No registration is required to attend this meeting.

Public Participation: The ISPAB agenda will include a period of time, not to exceed thirty minutes, for oral comments from the public (Friday, February 15, 2013, between 10:00 a.m. and 10:30 a.m.). Speakers will be selected on a first-come, first-served basis. Each speaker will be limited to five minutes. Questions from the public will not be considered during this period. Members of the public who are interested in speaking are requested to contact Annie Sokol at the contact information indicated in the FOR FURTHER INFORMATION CONTACT section of this notice.

Speakers who wish to expand upon their oral statements, those who had wished to speak but could not be accommodated on the agenda, and those who were unable to attend in person are invited to submit written statements. In addition, written statements are invited and may be submitted to the ISPAB at any time. All written statements should be directed to the ISPAB Secretariat, Information Technology Laboratory, 100 Bureau Drive, Stop 8930, National Institute of Standards and Technology, Gaithersburg, MD 20899-8930.

The Department of Commerce (United States Patent and Trademark Office) is accepting nominations for the National Medal of Technology and Innovation (NMTI). Since establishment by Congress in the Stevenson-Wydler Technology Innovation Act of 1980, the President of the United States has awarded the annual NMTI (initially known as the National Medal of Technology) to our nation's leading innovators. Those wishing to nominate a candidate who has made an outstanding, lasting contribution to the economy may obtain a nomination form from: http://go.usa.gov/1dU.

ADDRESSES:

The NMTI nomination form for the year 2013 may be obtained by visiting the USPTO Web site at http://go.usa.gov/1dU. Nomination applications should be submitted to John Palafoutas, Program Manager, National Medal of Technology and Innovation Program, by electronic mail to: NMTI@uspto.gov or by mail to: John Palafoutas, NMTI Program Manager, United States Patent and Trademark Office, P.O. Box 1450, Alexandria, Virginia 22313-1450.

DATES:

The deadline for submission of a nomination is April 1, 2013.

FOR FURTHER INFORMATION CONTACT:

John Palafoutas, Program Manager, National Medal of Technology and Innovation Program, United States Patent and Trademark Office, 600 Dulany Street, Alexandria, VA 22314; telephone (571) 272-9821 or by electronic mail: nmti@uspto.gov.

SUPPLEMENTARY INFORMATION:

Background: Enacted by Congress in the Stevenson-Wydler Technology Innovation Act of 1980, the National Medal of Technology was first awarded in 1985. On August 9, 2007, the President signed the America COMPETES (Creating Opportunities to Meaningfully Promote Excellence in Technology, Education, and Science) Act of 2007. The Act amended Section 16 of the Stevenson-Wydler Technology Innovation Act of 1980, changing the name of the Medal to the “National Technology and Innovation Medal.” The Medal is the highest honor awarded by the President of the United States to America's leading innovators in the field of technology and is given annually to individuals, teams, or companies who have made outstanding contributions to the promotion of technology and the technological workforce for the improvement of the economic, environmental or social well-being of the United States. The primary purpose of the NMTI is to recognize American innovators whose vision, creativity, and brilliance in moving ideas to market has had a profound and lasting impact on our economy and way of life. The Medal highlights the national importance of fostering technological innovation resulting in commercially successful products and services.

Eligibility and Nomination Criteria: Nomination Guidelines and nomination criteria are available at http://go.usa.gov/1dU.

Dated: December 21, 2012.David J. Kappos,Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office.[FR Doc. 2012-31524 Filed 12-31-12; 8:45 am]BILLING CODE 3510-16-PDEPARTMENT OF DEFENSEOffice of the SecretaryDefense Intelligence Agency National Intelligence University Board of Visitors Closed MeetingAGENCY:

Pursuant to the provisions of Subsection (d) of Section 10 of Public Law 92-463, as amended by section 5 of Public Law 94-409, notice is hereby given that a closed meeting of the National Intelligence University Board of Visitors has been scheduled as follows:

The entire meeting is devoted to the discussion of classified information as defined in Section 552b (c) (1), Title 5 of the U.S. Code and therefore will be closed. The Board will discuss several current critical intelligence issues and advise the Director, DIA, as to the successful accomplishment of the mission assigned to the National Intelligence University.

Due to difficulties, beyond the control of the National Intelligence University Board of Visitors or its Designated Federal Officer, the Board was unable to file a Federal Register notice for the January 8 through January 9, 2013 meeting of the National Intelligence University Board of Visitors as required by 41 CFR 102-3.150(a). Accordingly, the Advisory Committee Management Officer for the Department of Defense, pursuant to 41 CFR 102-3.150(b), waives the 15-calendar day notification requirement.

Take notice that the Commission received the following public utility holding company filings:

Docket Numbers: PH13-5-000.

Applicants: AltaGas Ltd.

Description: AltaGas Ltd. submits FERC-65A Exemption Notification.

Filed Date: 12/21/12.

Accession Number: 20121221-5030.

Comments Due: 5 p.m. ET 1/11/13.

The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.

Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.

Filings in Existing Proceedings

Docket Numbers: RP09-427-006.

Applicants: Southern Natural Gas Company, L.L.C.

Description: Petition of Southern Natural Gas Company, L.L.C. to Amend Stipulation and Agreement and Motion for Shortened Answer Period and Expedited Action.

Filed Date: 12/21/12.

Accession Number: 20121221-5319.

Comments Due: 5 p.m. ET 12/28/2012.

Docket Numbers: RP13-54-001.

Applicants: Northern Border Pipeline Company.

Description: RP13-54-000 NAESB Compliance to be effective 12/1/2012.

Filed Date: 12/13/12.

Accession Number: 20121213-5028.

Comments Due: 5 p.m. ET 12/26/12.

Any person desiring to protest in any the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5:00 p.m. Eastern time on the specified comment date.

The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, and service can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

In compliance with the Paperwork Reduction Act (44 U.S.C. 3501 et seq.), this document announces that an Information Collection Request (ICR) has been forwarded to the Office of Management and Budget (OMB) for review and approval. This is a request to renew an existing approved collection. The ICR which is abstracted below describes the nature of the collection and the estimated burden and cost.

EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On August 9, 2012 (77 FR 47631), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no comments. Any additional comments on this ICR should be submitted to both EPA and OMB within 30 days of this notice.

EPA has established a public docket for this ICR under docket ID number EPA-HQ-OECA-2012-0524, which is available for public viewing online at http://www.regulations.gov, or in person viewing at the Enforcement and Compliance Docket in the EPA Docket Center (EPA/DC), EPA West, Room 3334, 1301 Constitution Avenue NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Reading Room is (202) 566-1744, and the telephone number for the Enforcement and Compliance Docket is (202) 566-1752.

Use EPA's electronic docket and comment system at http://www.regulations.gov to either submit or view public comments, access the index listing of the contents of the docket, and to access those documents in the docket that are available electronically. Once in the system, select “docket search,” then key in the docket ID number identified above. Please note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing at http://www.regulations.gov as EPA receives them and without change, unless the comment contains copyrighted material, Confidentiality of Business Information (CBI), or other information whose public disclosure is restricted by statute. For further information about the electronic docket, go to www.regulations.gov.

Title: NSPS for Stationary Combustion Turbines (Renewal).

ICR Numbers: EPA ICR Number 2177.05, OMB Control Number 2060-0582.

ICR Status: This ICR is scheduled to expire on January 31, 2013. Under OMB regulations, the Agency may continue to either conduct or sponsor the collection of information while this submission is pending at OMB.

Abstract: The affected entities are subject to the General Provisions of the NSPS at 40 CFR part 60, subpart A and any changes, or additions to the Provisions specified at 40 CFR part 60, subpart KKKK.

Owners or operators of the affected facilities must make an initial notification report, performance tests, periodic reports, and maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative. Reports are also required semiannually.

Burden Statement: The annual public reporting and recordkeeping burden for this collection of information is estimated to average 38 hours per response. “Burden” means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements which have subsequently changed; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

Estimated Total Annual Cost: $4,298,616, which includes $4,298,616 in labor costs, no capital/startup costs, and no operation and maintenance (O&M) costs.

Changes in the Estimates: There is an increase in burden hours and costs for the respondents and the Agency from the most recently approved ICR. It should be noted that the increase is not due to any program changes. The increase is due to an adjustment in labor rates and in the number of new or modified sources. This ICR uses updated labor rates from the Bureau of Labor Statistics to calculate burden costs. Additionally, this ICR assumes the respondent universe subject to the regulation has continued to grow at a constant rate after the rule has been fully implemented.

In compliance with the Paperwork Reduction Act (44 U.S.C. 3501 et seq.), this document announces that an Information Collection Request (ICR) has been forwarded to the Office of Management and Budget (OMB) for review and approval. This is a request to renew an existing approved collection. The ICR which is abstracted below describes the nature of the collection and the estimated burden and cost.

EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On August 9, 2012 (77 FR 47631), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no comments. Any additional comments on this ICR should be submitted to both EPA and OMB within 30 days of this notice.

EPA has established a public docket for this ICR under docket ID number EPA-HQ-OECA-2012-0506, which is available for either public viewing online at either http://www.regulations.gov, or in person viewing at the Enforcement and Compliance Docket in the EPA Docket Center (EPA/DC), EPA West, Room 3334, 1301 Constitution Avenue NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Reading Room is (202) 566-1744, and the telephone number for the Enforcement and Compliance Docket is (202) 566-1752.

Use EPA's electronic docket and comment system at http://www.regulations.gov to either submit or view public comments, access the index listing of the contents of the docket, and to access those documents in the docket that are available electronically. Once in the system, select “docket search,” then key in the docket ID number identified above. Please note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing at http://www.regulations.gov as EPA receives them and without change, unless the comment contains copyrighted material, Confidentiality of Business Information (CBI), or other information whose public disclosure is restricted by statute. For further information about the electronic docket, go to www.regulations.gov.

Title: NSPS for Small Municipal Waste Combustors (Renewal) .

ICR Numbers: EPA ICR Number 1900.05, OMB Control Number 2060-0423.

ICR Status: This ICR is scheduled to expire on January 31, 2013. Under OMB regulations, the Agency may continue to either conduct or sponsor the collection of information while this submission is pending at OMB.

Abstract: The affected entities are subject to the General Provisions of the NSPS at 40 CFR part 60, subpart A and any changes, or additions to the Provisions specified at 40 CFR part 60, subpart AAAA.

Owners or operators of the affected facilities must make an initial notification report, performance tests, periodic reports, and maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative. Reports are also required semiannually.

Burden Statement: The annual public reporting and recordkeeping burden for this collection of information is estimated to average 1,235 hours per response. “Burden” means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements which have subsequently changed; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

Respondents/Affected Entities: Owners and operators of small municipal waste combustors.

Estimated Total Annual Cost: $1,364,227, which includes $1,195,891 in labor costs, $66,000 in capital/startup costs, and $102,336 in operation and maintenance (O&M) costs.

Changes in the Estimates: There is an increase in burden hours for the respondents from the most recently approved ICR due to an increase of one new source subject to the regulation (i.e. respondent universe). The growth in respondent universe also results in an increase in the respondent labor costs and O&M costs.

Additionally, there is an increase in burden costs for the Agency from the most recently approved ICR due to an adjustment in labor rates. This ICR uses updated labor rates from the Bureau of Labor Statistics to calculate all burden costs.

In accordance with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), EPA is issuing a notice of receipt of request for amendments by registrants to delete uses in certain pesticide registrations. FIFRA provides that a registrant of a pesticide product may at any time request that any of its pesticide registrations be amended to delete one or more uses. FIFRA further provides that, before acting on the request, EPA must publish a notice of receipt of any request in the Federal Register.

DATES:

The deletions in Table 1 are effective February 1, 2013, because the registrants in Table 1 requested a waiver of the 180-day comment period. Unless the Agency receives a written withdrawal request on or before February 1, 2013. The Agency will consider a withdrawal request postmarked no later than February 1, 2013. The deletion in Table 2 is effective July 1, 2013, unless the Agency receives a written withdrawal request on or before July 1, 2013.

Users of these products who desire continued use on crops or sites being deleted should contact the applicable registrant in Table 1 on or before February 1, 2013, for the registrants that requested a waiver of the 180-day comment period or in Table 2 July 1, 2013.

ADDRESSES:

Submit your withdrawal request, identified by docket identification (ID) number EPA-HQ-OPP-2012-0548, by one of the following methods:

This action is directed to the public in general. Although this action may be of particular interest to persons who produce or use pesticides, the Agency has not attempted to describe all the specific entities that may be affected by this action.

B. How can I get copies of this document and other related information?

The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2012-0548, is available either electronically through http://www.regulations.gov or in hard copy at the OPP Docket in the Environmental Protection Agency Docket Center (EPA/DC), located in EPA West, Rm. 3334, 1301 Constitution Ave. NW., Washington, DC 20460-0001. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPP Docket is (703) 305-5805. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

II. What action is the agency taking?

This notice announces receipt by the Agency of applications from registrants to delete uses in certain pesticide registrations. These registrations are listed in Table 1 and Table 2 of this unit by registration number, product name, active ingredient, and specific uses deleted:

Users of these products in Table 1, who desire continued use on crops or sites being deleted should contact the applicable registrant before February 1, 2013, because the registrants waived the 180-day comment period, to discuss withdrawal of the application for amendment. This 30-day period will also permit interested members of the public to intercede with registrants prior to the Agency's approval of the deletion.

Product nameActive ingredientDelete from label85904-1Amitraz InsecticideAmitrazUse on Cattle and Swine.

Users of this product in Table 2, who desire continued use on crops or sites being deleted should contact the applicable registrant before July 1, 2013 to discuss withdrawal of the application for amendment. This 180-day period will also permit interested members of the public to intercede with registrants prior to the Agency's approval of the deletion.

Table 3 of this unit includes the names and addresses of record for all registrants of the products listed in Table 1 and Table 2 of this unit, in sequence by EPA company number.

Section 6(f)(1) of FIFRA provides that a registrant of a pesticide product may at any time request that any of its pesticide registrations be amended to delete one or more uses. The FIFRA further provides that, before acting on the request, EPA must publish a notice of receipt of any such request in the Federal Register. Thereafter, the EPA Administrator may approve such a request.

IV. Procedures for Withdrawal of Request

Registrants who choose to withdraw a request for use deletion must submit the withdrawal in writing to Christopher Green using the methods in ADDRESSES. The Agency will consider written withdrawal requests postmarked no later than July 1, 2013, or February 1, 2013, for the registrants that requested to waive the 180-day comment period.

V. Provisions for Disposition of Existing Stocks

The Agency has authorized the registrants to sell or distribute product under the previously approved labeling for a period of 18 months after approval of the revision, unless other restrictions have been imposed, as in special review actions.

This document announces the date of the Emergency Access Advisory Committee's (Committee or EAAC) next meeting. At the January 2013 meeting, the agenda will include discussion of final reports from the subcommittees and other activities needed to ensure access to 911 by individuals with disabilities.

DATES:

The Committee's next meeting will take place on Friday, January 11, 2013, 10:30 a.m. to 3:30 p.m. (EST), at the headquarters of the Federal Communications Commission (FCC or Commission).

On December 7, 2010, in document DA 10-2318, Chairman Julius Genachowski announced the establishment and appointment of members and Co-Chairpersons of the EAAC, an advisory committee required by the Twenty-First Century Communications and Video Accessibility Act (CVAA), Public Law 11-260, for the purpose of achieving equal access to emergency services by individuals with disabilities as part of our nation's migration to a national Internet protocol-enabled emergency network, also known as the next generation 9-1-1 system (NG9-1-1). The purpose of the EAAC is to determine the most effective and efficient technologies and methods by which to enable access to Next Generation 911 (NG 9-1-1) emergency services by individuals with disabilities, and to make recommendations to the Commission on how to achieve those effective and efficient technologies and methods. During the spring of 2011, the EAAC conducted a nationwide survey of individuals with disabilities and released a report on that survey on June 21, 2011. Following release of the survey report, the EAAC developed recommendations, which it submitted to the Commission on December 7, 2011, as required by the CVAA. At the January 2013 EAAC meeting, the agenda will include discussion of final reports from the subcommittees and other activities needed to ensure access to 911 by individuals with disabilities.

The meeting site is fully accessible to people using wheelchairs or other mobility aids. Sign language interpreters, open captioning, and assistive listening devices will be provided on site. Other reasonable accommodations for people with disabilities are available upon request. In your request, include a description of the accommodation you will need and a way we can contact you if we need more information. Last minute requests will be accepted, but may be impossible to fill. Send an email to: fcc504@fcc.gov or call the Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY). To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

Shawn Woodhead Werth,Secretary and Clerk of the Commission.[FR Doc. 2012-31624 Filed 12-28-12; 4:15 pm]BILLING CODE 6715-01-PFEDERAL RESERVE SYSTEMChange in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding Company

The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).

The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than January 17, 2013.

1. Barbara K. Ferry, Nevada, Missouri, individually and as trustee of the L. Ingles Ferry Trust A, Barbara Fowler Ferry Trust, Hubert L. Fowler Trust, and the Marguerite Fowler Trust, and as a member of a family control group which includes, David L. Ferry, Joseph D. Ferry, Patrick Ferry, Lindley G. Ferry, Barbara J. Benbrook, Scott D. Benbrook, Jeffrey L. Benbrook and Emily L. Benbrook, all of Nevada, Missouri, to acquire control of Mid-Missouri Bancshares, Inc., and thereby acquire control of Mid-Missouri Bank, both of Springfield, Missouri.

Board of Governors of the Federal Reserve System, December 27, 2012.Robert deV. Frierson,Secretary of the Board.[FR Doc. 2012-31473 Filed 12-31-12; 8:45 am]BILLING CODE 6210-01-PDEPARTMENT OF HEALTH AND HUMAN SERVICESDetermination Concerning a Petition To Add a Class of Employees to the Special Exposure CohortAGENCY:

National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention, Department of Health and Human Services (HHS).

ACTION:

Notice.

SUMMARY:

HHS gives notice of a determination concerning a petition to add a class of employees from the United Nuclear Corporation in Hematite, Missouri, to the Special Exposure Cohort (SEC) under the Energy Employees Occupational Illness Compensation Program Act of 2000 (EEOICPA), 42 U.S.C. 7384q. On December 7, 2012, the Secretary of HHS determined that the following class of employees does not meet the statutory criteria for addition to the SEC as authorized under EEOICPA:

All site employees who worked in any area of the United Nuclear Corporation—Hematite, Missouri, site from January 1, 1958, through December 31, 1973, and the residual period January 1, 1974, through July 31, 2006.

John Howard,Director, National Institute for Occupational Safety and Health.[FR Doc. 2012-31215 Filed 12-31-12; 8:45 am]BILLING CODE 4163-19-PDEPARTMENT OF HEALTH AND HUMAN SERVICESNotice of Availability: Test Tools and Test Procedures Approved by the National Coordinator for the ONC HIT Certification ProgramAGENCY:

Office of the National Coordinator for Health Information Technology (ONC), Department of Health and Human Services.

ACTION:

Notice.

SUMMARY:

This notice announces the availability of test tools and test procedures approved by the National Coordinator for Health Information Technology (the National Coordinator) for the testing of EHR technology to the 2014 Edition EHR certification criteria under the ONC HIT Certification Program. The approved test tools and test procedures are identified on the ONC Web site at: http://www.healthit.gov/policy-researchers-implementers/2014-edition-final-test-method.

FOR FURTHER INFORMATION CONTACT:

Carol Bean, Director, Office of Certification, Office of the National Coordinator for Health Information Technology, 202-690-7151.

SUPPLEMENTARY INFORMATION:

On January 7, 2011, the Department of Health and Human Services issued a final rule establishing a permanent certification program for the purposes of testing and certifying health information technology (“Establishment of the Permanent Certification Program for Health Information Technology,” 76 FR 1262) (Permanent Certification Program final rule). The permanent certification program was renamed the “ONC HIT Certification Program” in a final rule published on September 4, 2012 (77 FR 54163) (“2014 Edition EHR Certification Criteria final rule”). In the preamble of the Permanent Certification Program final rule, we stated that when the National Coordinator had approved test tools and test procedures for certification criteria adopted by the Secretary ONC would publish a notice of availability in the Federal Register and identify the approved test tools and test procedures on the ONC Web site. In the 2014 Edition EHR Certification Criteria final rule the Secretary adopted the 2014 Edition EHR certification criteria. The National Coordinator has approved test tools and test procedures for testing EHR technology to the 2014 Edition EHR certification criteria under the ONC HIT Certification Program. These approved test tools and test procedures are identified on the ONC Web site at: http://www.healthit.gov/policy-researchers-implementers/2014-edition-final-test-method.

A hospital has requested a waiver of statutory requirements that would otherwise require the hospital to enter into an agreement with its designated Organ Procurement Organization (OPO). The request was made in accordance with section 1138(a)(2) of the Social Security Act (the Act). This notice requests comments from OPOs and the general public for our consideration in determining whether we should grant the requested waiver.

DATES:

Comment Date: To be assured consideration, comments must be received at one of the addresses provided below, no later than 5 p.m. on March 4, 2013.

ADDRESSES:

In commenting, please refer to file code CMS-1456-NC. Because of staff and resource limitations, we cannot accept comments by facsimile (FAX) transmission.

You may submit comments in one of four ways (please choose only one of the ways listed):

1. Electronically. You may submit electronic comments on this regulation to http://www.regulations.gov. Follow the instructions under the “More Search Options” tab.

(Because access to the interior of the Hubert H. Humphrey Building is not readily available to persons without Federal government identification, commenters are encouraged to leave their comments in the CMS drop slots located in the main lobby of the building. A stamp-in clock is available for persons wishing to retain a proof of filing by stamping in and retaining an extra copy of the comments being filed.)

If you intend to deliver your comments to the Baltimore address, call telephone number (410) 786-9994 in advance to schedule your arrival with one of our staff members.

Comments erroneously mailed to the addresses indicated as appropriate for hand or courier delivery may be delayed and received after the comment period.

For information on viewing public comments, see the beginning of the “SUPPLEMENTARY INFORMATION” section.

FOR FURTHER INFORMATION CONTACT:

Patricia Taft, (410) 786-4561.

SUPPLEMENTARY INFORMATION:

Inspection of Public Comments: All comments received before the close of the comment period are available for viewing by the public, including any personally identifiable or confidential business information that is included in a comment. We post all comments received before the close of the comment period on the following web site as soon as possible after they have been received: http://www.regulations.gov. Follow the search instructions on that web site to view public comments.

Comments received timely will also be available for public inspection as they are received, generally beginning approximately 3 weeks after publication of a document, at the headquarters of the Centers for Medicare & Medicaid Services, 7500 Security Boulevard, Baltimore, Maryland 21244, Monday through Friday of each week from 8:30 a.m. to 4 p.m. To schedule an appointment to view public comments, phone 1-800-743-3951.

I. Background

Organ Procurement Organizations (OPOs) are not-for-profit organizations that are responsible for the procurement, preservation, and transport of organs to transplant centers throughout the country. Qualified OPOs are designated by the Centers for Medicare & Medicaid Services (CMS) to recover or procure organs in CMS-defined exclusive geographic service areas, pursuant to section 371(b)(1) of the Public Health Service Act (42 U.S.C. 273(b)(1)) and our regulations at 42 CFR 486.306. Once an OPO has been designated for an area, hospitals in that area that participate in Medicare and/or Medicaid are required to work with that OPO in providing organs for transplant, pursuant to section 1138(a)(1)(C) of the Social Security Act (the Act) and our regulations at 42 CFR 482.45.

Section 1138(a)(1)(A)(iii) of the Act provides that a hospital must notify the designated OPO (for the service area in which it is located) of potential organ donors. Under section 1138(a)(1)(C) of the Act, every participating hospital must have an agreement only with its designated OPO to identify potential donors.

However, section 1138(a)(2)(A) of the Act provides that a hospital may obtain a waiver of the above requirements from the Secretary under certain specified conditions. A waiver allows the hospital to have an agreement with an OPO other than the one initially designated by CMS, if the hospital meets certain conditions specified in section 1138(a)(2)(A) of the Act. In addition, the Secretary may review additional criteria described in section 1138(a)(2)(B) of the Act to evaluate the hospital's request for a waiver.

Section 1138(a)(2)(A) of the Act states that in granting a waiver, the Secretary must determine that the waiver—(1) is expected to increase organ donations; and (2) will assure equitable treatment of patients referred for transplants within the service area served by the designated OPO and within the service area served by the OPO with which the hospital seeks to enter into an agreement under the waiver. In making a waiver determination, section 1138(a)(2)(B) of the Act provides that the Secretary may consider, among other factors: (1) Cost-effectiveness; (2) improvements in quality; (3) whether there has been any change in a hospital's designated OPO due to the changes made in definitions for metropolitan statistical areas; and (4) the length and continuity of a hospital's relationship with an OPO other than the hospital's designated OPO. Under section 1138(a)(2)(D) of the Act, the Secretary is required to publish a notice of any waiver application received from a hospital within 30 days of receiving the application, and to offer interested parties an opportunity to submit comments during the 60-day comment period beginning on the publication date in the Federal Register.

The criteria that the Secretary uses to evaluate the waiver in these cases are the same as those described above under sections 1138(a)(2)(A) and (B) of the Act and have been incorporated into the regulations at § 486.308(e) and (f).

II. Waiver Request Procedures

In October 1995, we issued a Program Memorandum (Transmittal No. A-95-11) detailing the waiver process and discussing the information hospitals must provide in requesting a waiver. We indicated that upon receipt of a waiver request, we would publish a Federal Register notice to solicit public comments, as required by section 1138(a)(2)(D) of the Act.

According to these requirements, we will review the comments received. During the review process, we may consult on an as-needed basis with the Health Resources and Services Administration's Division of Transplantation, the United Network for Organ Sharing, and our regional offices. If necessary, we may request additional clarifying information from the applying hospital or others. We will then make a final determination on the waiver request and notify the hospital and the designated and requested OPOs.

III. Hospital Waiver Request

As permitted by § 486.308(e), the following hospital has requested a waiver to enter into an agreement with a designated OPO other than the OPO designated for the service area in which the hospital is located: Bolivar Medical Center in Cleveland, Mississippi, is requesting a waiver to work with: Mississippi Organ Recovery Agency, 4400 Lakeland Drive, Flowood, MS 39232.

The Food and Drug Administration (FDA) is announcing the availability of the guidance entitled “Refuse to Accept Policy for 510(k)s.” The purpose of this document is to explain the procedures and criteria FDA intends to use in determining whether a 510(k) submission is administratively complete, which determines whether it should be accepted for substantive review and clearance. This guidance is applicable to 510(k)s reviewed in the Center for Devices and Radiological Health (CDRH) and the Center for Biologics Evaluation and Research (CBER).

DATES:

Submit either electronic or written comments on this guidance at any time. General comments on Agency guidance documents are welcome at any time.

ADDRESSES:

Submit written requests for single copies of the guidance document entitled “Refuse to Accept Policy for 510(k)s” to the Division of Small Manufacturers, International and Consumer Assistance, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 4613, Silver Spring, MD 20993-0002; or Office of Communication, Outreach and Development (HFM-40), Center for Biologics Evaluation and Research (CBER), Food and Drug Administration, 1401 Rockville Pike, Suite 200N, Rockville, MD 20852-1448. Send one self-addressed adhesive label to assist that office in processing your request, or fax your request to 301-847-8149. See the SUPPLEMENTARY INFORMATION section for information on electronic access to the guidance.

Submit electronic comments on the guidance to http://www.regulations.gov. Submit written comments to the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Identify comments with the docket number found in brackets in the heading of this document.

The purpose of the 510(k) acceptance review is to make a threshold determination whether a submission is administratively complete, which determines whether it should be accepted for substantive review to reach a determination regarding substantial equivalence under section 513(i) of the FD&C Act, 21 U.S.C. 360c(i). To find a device substantially equivalent under section 513(i) of the FD&C Act, FDA must find that it has the same intended use as the predicate device, and either: (1) Has the same technological characteristics as the predicate device, or (2) has different technological characteristics, as defined at section 513(i)(1)(B), and (3) the submission contains information, including appropriate clinical or scientific data if necessary, that demonstrates the device is as safe and effective as the predicate and does not raise different questions of safety and effectiveness from the predicate.

The purpose of this document is to explain the procedures and criteria FDA intends to use in determining whether a 510(k) submission is administratively complete and should be accepted for substantive review. This guidance document provides updated information to two existing guidance documents entitled “Center for Devices and Radiological Health's Premarket Notification (510(k)) Refuse to Accept Policy” issued on June 30, 1993 and “510(k) Refuse to Accept Procedures, 510(k) Memorandum K94-1” issued on May 20, 1994. Upon issuance as a final guidance document, this guidance will replace those documents.

To further focus the Agency's review resources on complete applications, which will provide a more efficient approach to ensuring that safe and effective medical devices reach patients as quickly as possible, we have modified the 1993 and 1994 guidances. For example, we have modified the 510(k) Refuse to Accept (RTA) policy to include an early review against specific acceptance criteria and to inform the submitter within the first 15 calendar days of receipt of the submission if the submission is administratively complete, or if not, to identify the missing element(s). In order to enhance the consistency of our acceptance decisions and to help submitters better understand the types of information FDA needs to conduct a substantive review, this guidance, including the checklists included in the appendices, clarifies the necessary elements and contents of a complete 510(k) submission. These elements are applicable to all devices reviewed through the 510(k) notification process in CDRH and CBER and have been compiled into checklists for use by FDA review staff.

In the Federal Register of August 13, 2012 (77 FR 48159), FDA announced the availability of the draft guidance document. Interested persons were invited to comment by September 27, 2012. Eleven sets of comments were received with multiple recommendations pertaining to the administrative processes and policies regarding 510(k) acceptance decisions.

A number of commenters expressed concern that the checklist questions related to performance data implied that FDA staff would need to conduct a level of substantive review in order to complete the checklist. FDA has revised the language in these questions and added further instructions to FDA staff to more specifically state that only the presence of the information is required for acceptance, and that the adequacy of the information should only be assessed after acceptance and as part of the substantive review.

Similar comments were received regarding questions in the checklists that identified an “analysis” or “discussion” as a criterion for acceptance. Commenters were concerned that FDA staff would be assessing the adequacy of the “analysis” or “discussion” in order to complete the checklist. These questions have also been modified to explain more clearly that the acceptance criterion requires only that the “analysis” or “discussion” be present; the adequacy of this information should be assessed during the substantive review.

FDA received comments regarding relevant prior submissions and how prior FDA feedback relevant to determining substantial equivalence has been addressed in the submission under review. It was suggested that FDA identify a particular location within the submission for this information, noting that such information could be found in multiple locations. The guidance has been revised to suggest more specific locations within the submission where this information can be provided for the ease of compiling a 510(k) and to facilitate FDA staff's acceptance review.

Other comments provided editorial suggestions for clarity and for consistency with other FDA guidance documents. In response to these comments, FDA revised the guidance document to clarify the processes and policies as appropriate. This guidance supersedes the guidances “Center for Devices and Radiological Health's Premarket Notification (510(k)) Refuse to Accept Policy” issued on June 30, 1993 and “510(k) Refuse to Accept Procedures, 510(k) Memorandum K94-1” issued on May 20, 1994.

II. Significance of Guidance

This guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidance represents the Agency's current thinking on the refuse to accept policy for 510(k)s. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statute and regulations.

III. Electronic Access

Persons interested in obtaining a copy of the guidance may do so by using the Internet. A search capability for all CDRH guidance documents is available at http://www.fda.gov/MedicalDevices/DeviceRegulationandGuidance/GuidanceDocuments/default.htm. Guidance documents are also available at http://www.regulations.gov. To receive “Refuse to Accept Policy for 510(k)s,” you may either send an email request to dsmica@fda.hhs.gov to receive an electronic copy of the document or send a fax request to 301-847-8149 to receive a hard copy. Please use the document number 1793 to identify the guidance you are requesting.

IV. Paperwork Reduction Act of 1995

This guidance refers to currently approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in 21 CFR part 807, subpart E, have been approved under OMB control number 0910-0120.

V. Comments

Interested persons may submit either written comments regarding this document to the Division of Dockets Management (see ADDRESSES) or electronic comments to http://www.regulations.gov. It is only necessary to send one set of comments. Identify comments with the docket number found in brackets in the heading of this document. Received comments may be seen in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday, and will be posted to the docket at http://www.regulations.gov.

The Food and Drug Administration (FDA) is announcing the availability of the guidance entitled “Acceptance and Filing Reviews for Premarket Approval Applications (PMAs).” The purpose of the acceptance and filing reviews is to make a threshold determination about whether an application is administratively complete. This guidance document is intended to clarify the criteria for accepting and filing a PMA, thereby assuring the consistency of our acceptance and filing decisions. This guidance is applicable to original PMAs and PMA panel-track supplements reviewed in the Center for Devices and Radiological Health (CDRH) and the Center for Biologics Evaluation and Research (CBER).

DATES:

Submit either electronic or written comments on this guidance at any time. General comments on Agency guidance documents are welcome at any time.

ADDRESSES:

Submit written requests for single copies of the guidance document entitled “Acceptance and Filing Reviews for Premarket Approval Applications (PMAs)” to the Division of Small Manufacturers, International and Consumer Assistance, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, rm. 4613, Silver Spring, MD 20993-0002; or Office of Communication, Outreach and Development (HFM-40), Center for Biologics Evaluation and Research (CBER), Food and Drug Administration, 1401 Rockville Pike, suite 200N, Rockville, MD 20852-1448. Send one self-addressed adhesive label to assist that office in processing your request, or fax your request to 301-847-8149. See the SUPPLEMENTARY INFORMATION section for information on electronic access to the guidance.

Submit electronic comments on the guidance to http://www.regulations.gov. Submit written comments to the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Identify comments with the docket number found in brackets in the heading of this document.

The PMA regulation (21 CFR 814.42(e)) identifies the criteria that, if not met, may serve as a basis for refusing to file a PMA. These criteria are discussed in the guidance document “Guidance for Industry and FDA Staff Premarket Approval Application Filing Review,” dated May 1, 2003. This document has been used by FDA staff and the device industry to help elucidate the broad preclinical and clinical issues that need to be addressed in a PMA and the key decisions to be made during the filing process. The guidance entitled “Acceptance and Filing Reviews for Premarket Approval Applications (PMAs)” supersedes the guidance entitled “Guidance for Industry and FDA Staff Premarket Approval Application Filing Review.”

To further focus the Agency's review resources on complete applications, which will provide a more efficient approach to ensuring that devices that have a reasonable assurance of safety and effectiveness reach patients as quickly as possible, we have modified the PMA filing guidance. In this guidance entitled, “Acceptance and Filing Reviews for Premarket Approval Applications (PMAs),” we have separated the requirements for PMA filing into: (1) Acceptance criteria and (2) filing criteria. Acceptance review involves an early assessment of the completeness of the application, and informing the applicant in a written response within the first 15 calendar days of receipt of the application whether any administrative elements are missing, and if so, identifying the missing administrative element(s).

In order to enhance the consistency of our acceptance and filing decisions and to help applicants understand the types of information FDA needs to conduct a substantive review of a PMA, this guidance and associated checklist clarify the necessary elements and contents of a complete PMA application. The process we outline is applicable to all devices reviewed in a PMA application. Acceptance and filing decisions will be made for all original PMA applications and panel-track PMA supplements.

This guidance is not significantly different from the 2003 PMA guidance document. The “preliminary questions” remain the same and the “filing review questions” have been separated into “acceptance decision questions” (i.e., is the file administratively complete) and “filing decision questions” (i.e., are data consistent with protocol, final device design, and proposed indications). In addition, it should be noted that this document is focused on the regulatory and scientific criteria for making an “Accept” or “Refuse to Accept” decision as well as “File” or “Not File” decision for a PMA. It specifically does not alter the following administrative aspects of the PMA filing process: (1) The time frame for the filing review phase (i.e., 45 days); (2) the processes for document tracking, distribution, and handling; and (3) the procedures for assembling the review team and setting up the filing meeting.

In the Federal Register of July 31, 2012 (77 FR 45357), FDA announced the availability of the draft guidance document. Interested persons were invited to comment by September 14, 2012. Nine comments were received with multiple recommendations pertaining to the administrative processes and policies regarding acceptance and filing review decisions. In response to these comments, FDA revised the guidance document to clarify the processes and policies as appropriate. This guidance supersedes the guidance entitled “Guidance for Industry and FDA Staff Premarket Approval Application Filing Review,” dated May 1, 2003.

II. Significance of Guidance

This guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidance represents the Agency's current thinking on acceptance and filing reviews for PMAs. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statute and regulations.

III. Electronic Access

Persons interested in obtaining a copy of the guidance may do so by using the Internet. A search capability for all CDRH guidance documents is available at http://www.fda.gov/MedicalDevices/DeviceRegulationandGuidance/GuidanceDocuments/default.htm. Guidance documents are also available at http://www.regulations.gov or from the CBER internet site at http://www.fda.gov/BiologicsBloodVaccines/GuidanceComplianceRegulatoryInformation/default.htm. To receive “Acceptance and Filing Reviews for Premarket Approval Applications (PMAs),” you may either send an email request to dsmica@fda.hhs.gov to receive an electronic copy of the document or send a fax request to 301-847-8149 to receive a hard copy. Please use the document number 1792 to identify the guidance you are requesting.

IV. Paperwork Reduction Act of 1995

This guidance refers to currently approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in 21 CFR part 814, subpart B, have been approved under OMB control number 0910-0231.

V. Comments

Interested persons may submit either written comments regarding this document to the Division of Dockets Management (see ADDRESSES) or electronic comments to http://www.regulations.gov. It is only necessary to send one set of comments. Identify comments with the docket number found in brackets in the heading of this document. Received comments may be seen in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday, and will be posted to the docket at http://www.regulations.gov.

The Food and Drug Administration (FDA) is announcing the availability of the guidance entitled “eCopy Program for Medical Device Submissions.” The purpose of the guidance is to explain the new electronic copy (eCopy) Program for medical device submissions, which is intended to improve the efficiency of the review process by allowing for the immediate availability of an electronic version for review rather than relying solely on the paper version. The guidance describes how FDA has implemented the eCopy Program under the Federal Food, Drug, and Cosmetic Act (the FD&C Act). This guidance also provides the standards for a valid eCopy under the FD&C Act and identifies the submission types that must include an eCopy in accordance with these standards for the submission to be processed and accepted for review by FDA. This final guidance will be considered in effect on January 1, 2013, or at the time of publication, whichever is later.

DATES:

Submit either electronic or written comments on this guidance at any time. General comments on Agency guidance documents are welcome at any time.

ADDRESSES:

Submit written requests for single copies of the guidance document entitled “eCopy Program for Medical Device Submissions” to the Division of Small Manufacturers, International and Consumer Assistance, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, rm. 4613, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing your request, or fax your request to 301-847-8149. See the SUPPLEMENTARY INFORMATION section for information on electronic access to the guidance.

Submit electronic comments on the guidance to http://www.regulations.gov. Submit written comments to the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Identify comments with the docket number found in brackets in the heading of this document.

FDA is announcing the availability of a final guidance for industry and FDA staff entitled “eCopy Program for Medical Device Submissions.” This guidance explains the new eCopy Program for medical device submissions. This final guidance will be considered in effect on January 1, 2013, or at the time of publication, whichever is later. After this date, submission of an eCopy for a medical device submission is no longer voluntary. Section 745A(b) of the FD&C Act, added by section 1136 of the Food and Drug Administration Safety and Innovation Act (Pub. L. 112-144), requires the submission of an eCopy of certain device submissions after issuance of final guidance. This guidance describes how FDA has implemented the eCopy Program under section 745A(b) of the FD&C Act. The inclusion of an eCopy is expected to improve the efficiency of the review process by allowing for the immediate availability of an electronic version for review rather than relying solely on the paper version.

The eCopy Program is not intended to impact (reduce or increase) the type or amount of data the applicant includes in a submission to support clearance or approval. An eCopy is defined as an exact duplicate of the paper submission, created and submitted on a compact disc, digital video disc, or flash drive, accompanied by a copy of the signed cover letter and the complete paper submission.

In the Federal Register of October 17, 2012 (77 FR 63837), FDA announced the availability of the draft guidance document. Interested persons were invited to comment by November 16, 2012. Eight comments were received and in general were supportive of the eCopy Program. However, the comments contained multiple recommendations pertaining to the organization of the guidance and requests for clarification on details such as how many copies are needed for each submission type, for what types of submissions an eCopy is required, the necessity for a signed cover letter, how eCopy processing is conducted, when a submission begins the review process, and how to interpret some of the standards in the Attachment. In response to these comments, FDA revised the guidance document to clarify the primary points of confusion identified, and restructured the information for better readability.

II. Significance of Guidance

In section 745A(b), Congress granted explicit statutory authorization to FDA to implement the statutory eCopy requirement by providing standards, criteria for waivers, and exemptions in guidance. To the extent that this document provides requirements under section 745A(b)(2)(A) of the FD&C Act (i.e., standards, criteria for waivers, and exemptions), indicated by the use of the words must or required, this document is not subject to the usual restrictions in FDA's good guidance practice regulations, such as the requirement that guidances not establish legally enforceable responsibilities. (See 21 CFR 10.115(d).)

However, this document also contains guidance on implementing the eCopy Program. To the extent that this guidance describes recommendations that are not standards, criteria for waivers, or exemptions under section 745A(b)(2), it is being issued in accordance with FDA's good guidance practices regulation (21 CFR 10.115). Such parts of this guidance represent the Agency's current thinking on this topic, and do not create or confer any rights for or on any person and do not operate to bind FDA or the public. An alternative approach may be used for these recommendations if such an approach satisfies the requirements of the applicable statutes and regulations. The use of the word should in this guidance means that something is suggested or recommended, but not required. This final guidance contains both binding and nonbinding provisions.

III. Electronic Access

Persons interested in obtaining a copy of the guidance may do so by using the Internet. A search capability for all CDRH guidance documents is available at http://www.fda.gov/MedicalDevices/DeviceRegulationandGuidance/GuidanceDocuments/default.htm. Guidance documents are also available at http://www.regulations.gov. To receive “eCopy Program for Medical Device Submissions,” you may either send an email request to dsmica@fda.hhs.gov to receive an electronic copy of the document or send a fax request to 301-847-8149 to receive a hard copy. Please use the document number 1797 to identify the guidance you are requesting.

IV. Paperwork Reduction Act of 1995

This guidance refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in 21 CFR part 807, subpart E, have been approved under OMB control number 0910-0120 (510(k)); the collections of information in 21 CFR part 812 have been approved under OMB control number 0910-0078 (Investigational Device Exemptions); the collections of information in 21 CFR part 814 have been approved under OMB control number 0910-0231 (Premarket Approval); the collections of information in section 513(g) of the FD&C Act (21 U.S.C. 360c(g)) have been approved under OMB control number 0910-0705 (513(g)); the collections of information in 21 CFR part 814, subpart H, have been approved under OMB control numbers 0910-0332 and 0910-0661 (Humanitarian Use Devices); and the collections of information in section 564 of the FD&C Act (21 U.S.C. 360bbb-3) have been approved under OMB control number 0910-0595 (Emergency Use Authorization).

V. Comments

Interested persons may submit either written comments regarding this document to the Division of Dockets Management (see ADDRESSES) or electronic comments to http://www.regulations.gov. It is only necessary to send one set of comments. Identify comments with the docket number found in brackets in the heading of this document. Received comments may be seen in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday, and will be posted to the docket at http://www.regulations.gov.

The Food and Drug Administration (FDA) is announcing a tentative schedule of forthcoming meetings of its public advisory committees for 2013. During 1991, at the request of the Commissioner of Food and Drugs (the Commissioner), the Institute of Medicine (the IOM) conducted a study of the use of FDA's advisory committees. In its final report, one of the IOM's recommendations was for the Agency to publish an annual tentative schedule of its meetings in the Federal Register. This publication implements the IOM's recommendation.

The IOM, at the request of the Commissioner, undertook a study of the use of FDA's advisory committees. In its final report in 1992, one of the IOM's recommendations was for FDA to adopt a policy of publishing an advance yearly schedule of its upcoming public advisory committee meetings in the Federal Register; FDA has implemented this recommendation. The annual publication of tentatively scheduled advisory committee meetings will provide both advisory committee members and the public with the opportunity, in advance, to schedule attendance at FDA's upcoming advisory committee meetings. Because the schedule is tentative, amendments to this notice will not be published in the Federal Register. However, changes to the schedule will be posted on the FDA advisory committees' Internet site located at http://www.fda.gov/AdvisoryCommittees/default.htm. FDA will continue to publish a Federal Register notice 15 days in advance of each upcoming advisory committee meeting, to announce the meeting (21 CFR 14.20).

The following list announces FDA's tentatively scheduled advisory committee meetings for 2013. You may also obtain up-to-date information by calling the Advisory Committee Information Line, 1-800-741-8138 (301-443-0572 in the Washington, DC area) or on the FDA Internet Web site under our 2013 tentative scheduled meeting listing at http://www.fda.gov/AdvisoryCommittees/Calendar/ucm153468.htm.

Table 1Committee nameTentative date(s) of meeting(s)OFFICE OF THE COMMISSIONERPediatric Advisory CommitteeMarch 14-15, September 19-20.Risk Communication Advisory CommitteeFebruary 11-12, April 29-30, August 15-16, December 16-17.Science Board to FDAFebruary 27, June 24, November 20.CENTER FOR BIOLOGICS EVALUATION AND RESEARCHAllergenic Products Advisory CommitteeNovember 5-6.Blood Products Advisory CommitteeFebruary 12-13, April 8-9, August 1-2.Cellular, Tissue and Gene Therapies Advisory CommitteeJanuary 15, April 17-18, June 27-28, October 24-25.Transmissible Spongiform Encephalopathies Advisory CommitteeMarch 14-15.Vaccines and Related Biological Products Advisory CommitteeFebruary 27, May 8-9 or July 17-18 (Backup date), September 18-19, November 13-14.CENTER FOR DRUG EVALUATION AND RESEARCHAnesthetic and Analgesic Drug Products Advisory CommitteeDate(s), if needed, to be determined.Anti-Infective Drugs Advisory CommitteeDate(s), if needed, to be determined.Antiviral Drugs Advisory CommitteeMay and October dates to be determined.Arthritis Advisory CommitteeJuly or August and fall dates to be determined.Cardiovascular and Renal Drugs Advisory CommitteeApril 17 and other date(s) to be determined.Dermatologic and Ophthalmic Drugs Advisory CommitteeDate(s), if needed, to be determined.Drug Safety and Risk Management Advisory CommitteeJanuary 24-25, March 5.Endocrinologic and Metabolic Drugs Advisory CommitteeJanuary 10, July, and August dates to be determined.Gastrointestinal Drugs Advisory CommitteeMarch 19 and other date(s) to be determined.Medical Imaging Drugs Advisory CommitteeFebruary 14 and May date to be determined.Nonprescription Drugs Advisory CommitteeDate(s), if needed, to be determined.Oncologic Drugs Advisory

Under the provisions of Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, for opportunity for public comment on proposed data collection projects, the National Institutes of Health (NIH) will publish periodic summaries of proposed projects to be submitted to the Office of Management and Budget (OMB) for review and approval.

Written comments and/or suggestions from the public and affected agencies are invited to address one or more of the following points: (1) Whether the proposed collection of information is necessary for the proper performance of the function of the agency, including whether the information will have practical utility; (2) The accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) The quality, utility, and clarity of the information to be collected; and (4) Minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

Need and Use of Information Collection: In order to carry out NCI's legislative mandate to educate and disseminate information about cancer prevention, detection, diagnosis, and treatment to a wide variety of audiences and organizations, it is beneficial for NCI through its Office of Communications and Education (OCE), to pretest NCI communications strategies, concepts, and messages while they are under development. This pretesting, or formative evaluation, helps ensure that the messages, communication materials, and information services created by NCI have the greatest capacity of being received, understood, and accepted by their target audiences. Since NCI's OCE also is responsible for the design, implementation, and evaluation of education programs over the entire cancer continuum, and management of NCI initiatives that address specific challenges in cancer research and treatment, it is also necessary to ensure that customers are satisfied with programs. This customer satisfaction research helps ensure the relevance, utility, and appropriateness of the many educational programs and products that OCE and NCI produce. OCE will use a variety of qualitative (focus groups, interviews) and quantitative (paper, phone, in-person, and web surveys) methodologies to conduct this formative and customer satisfaction research, allowing NCI to: (1) Understand characteristics (attitudes, beliefs, and behaviors) of the intended target audience and use this information in the development of effective communication tools and strategies; (2) use a feedback loop to help refine, revise, and enhance messages, materials, products, and programs—ensuring that they have the greatest relevance, utility, appropriateness, and impact for/to target audiences; and (3) expend limited program resource dollars wisely and effectively. The participants may include, but are not limited to, cancer patients, their families, the general public, health providers, the media, voluntary groups, scientific and medical organizations (affected public could include individuals or households; businesses or other for profit; not-for-profit institutions; and Federal Government; State, Local, or Tribal Government).

OMB approval is requested for 3 years. There are no costs to respondents other than their time. The total estimated annualized burden hours are 6,600.

The Department of Health and Human Services (Department) has created the Interagency Pain Research Coordinating Committee and is seeking nominations for this committee. As specified in Public Law 111-148 (“Patient Protection and Affordable Care Act”) the Committee will: (a) Develop a summary of advances in pain care research supported or conducted by the Federal agencies relevant to the diagnosis, prevention, and treatment of pain and diseases and disorders associated with pain; (b) identify critical gaps in basic and clinical research on the symptoms and causes of pain; (c) make recommendations to ensure that the activities of the National Institutes of Health and other Federal agencies are free of unnecessary duplication of effort; (d) make recommendations on how best to disseminate information on pain care; and (e) make recommendations on how to expand partnerships between public entities and private entities to expand collaborative, cross-cutting research.

Membership on the committee will include six (6) non-Federal members from among scientists, physicians, and other health professionals and six (6) non-Federal members of the general public who are representatives of leading research, advocacy, and service organizations for individuals with pain-related conditions. Members will serve overlapping three year terms. It is anticipated that the committee will meet at least once a year.

The Department strives to ensure that the membership of HHS Federal advisory committees is fairly balanced in terms of points of view represented and the committee's function. Every effort is made to ensure that the views of women, all ethnic and racial groups, and people with disabilities are represented on HHS Federal advisory committees and, therefore, the Department encourages nominations of qualified candidates from these groups. The Department also encourages geographic diversity in the composition of the Committee. Appointment to this Committee shall be made without discrimination on the basis of age, race, ethnicity, gender, sexual orientation, disability, and cultural, religious, or socioeconomic status.

The Department is soliciting nominations for two non-federal members from among scientists, physicians, and other health professionals and for two non-federal members of the general public who are representatives of leading research, advocacy, and service organizations for people with pain-related conditions. These candidates will be considered to fill positions opened through completion of member terms. Nominations are due by COB, January 25, 2013, and should be sent to Linda Porter, Ph.D., NINDS/NIH, 31 Center Drive, Room 8A03, Bethesda, MD 20892, porterl@ninds.nih.gov by either USPS mail or email. Nominations should include contact information, and a current curriculum vitae or resume.

Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.

The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

Name of Committee: Center for Scientific Review Special Emphasis Panel Biophysics and Biochemistry of Membranes.

Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.

The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

Name of Committee: Center for Inherited Disease Research Access Committee CIDR Access Conflict.

Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.

The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

Name of Committee: Center for Scientific Review Special Emphasis Panel Member Conflict: Dementia, Cognitive Dysfunction, and Stroke.

Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.

The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

Name of Committee: National Institute of Biomedical Imaging and Bioengineering Special Emphasis Panel, 2013-05 ZEB1 OSR-D(M1)S/Low-Dose CT Imaging (U01).

Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.

The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

Name of Committee: National Institute of Allergy and Infectious Diseases Special Emphasis Panel NIAID Science Education Awards (R25).

Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.

The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

Name of Committee: Center for Scientific Review Special Emphasis Panel Member Conflict: Molecular and Cellular Hematology.

Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.

The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

Name of Committee: Center for Scientific Review Special Emphasis Panel; Program Project: Conus Peptides.

Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.

The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

Responsible Official: Daniel G. Wheeland, Director, Office of Research Facilities Development and Operations, National Institutes of Health.

SUMMARY:

The Department of Health and Human Services, the National Institutes of Health (NIH), has decided, after completion of a Final Supplementary Risk Assessment and a thorough consideration of public comments on the Draft and Final Supplementary Risk Assessment, to implement the Proposed Action, which is identified as the Preferred Alternative in the Final Environmental Impact Statement (EIS). This action reaffirms the NIH's previous decision to partially fund the construction of a state-of-the-art National Biocontainment Laboratory (NBL), the National Emerging Infectious Diseases Laboratories (NEIDL), at the Boston University Medical Campus (BUMC) in Boston, Massachusetts.

FOR FURTHER INFORMATION CONTACT:

For further information on the Record of Decision: Valerie Nottingham, Chief, Environmental Quality Branch, Office of Research Facilities, National Institutes of Health, 9000 Rockville Pike, Bld. 13/2S11, Bethesda, MD 20892 nihnepa@mail.nih.gov.

The National Institutes of Health (NIH), an operating division of the Department of Health and Human Services (HHS), has decided, after completion of a Final Supplementary Risk Assessment for the Boston University (BU) National Emerging Infectious Diseases Laboratories (NEIDL) and a thorough consideration of the public comments on the Draft and Final Supplementary Risk Assessments, that the NEIDL, in its current location in the BioSquare Research Park, poses minimal risk to the community surrounding the facility. The Final Supplementary Risk Assessment extensively evaluated scenarios involving the potential human health consequences of an exposure to laboratory workers and members of the general public as a result of unintentional or malevolent events. The Final Supplementary Risk Assessment also analyzed the potential human health impacts of siting the NEIDL at two alternate locations from the current site in Boston. The Final Supplementary Risk Assessment concluded that the risk to the public was generally low, regardless of where the facility was located. The analysis also showed there was no disproportionate impact to the residents living in the environmental justice communities adjacent to the NEIDL's current location or to any environmental justice communities at either of the two alternative locations analyzed. Based on the results of the Final Supplementary Risk Assessment, NIH is reaffirming its prior Record of Decision of January 26, 2006, published in the Federal Register on February 2, 2006.

On January 26, 2006, the NIH signed the Record of Decision (ROD) to partially fund the construction of a state-of the-art National Biocontainment Laboratory, which is now known as the NEIDL, on the Boston University Medical Campus in Boston, Massachusetts. The NEIDL is a research facility that was designed to include high- and maximum-containment laboratories for research on emerging and re-emerging infectious diseases. The ROD was posted in the Federal Register on February 2, 2006, and described the Proposed Action and alternatives considered in the NIH's Environmental Impact Statement for the NEIDL. The ROD also described many of the physical characteristics of the NEIDL and the safeguards that would be in place for research conducted in the building.

After the ROD was released, some members of the public continued to have concerns about the safety and environmental impact of the facility. Several citizens and public interest groups filed lawsuits in Federal court to stop the NIH's partial funding of the NEIDL's construction. Opponents also filed a lawsuit in Massachusetts state court challenging the state's approval of the project. Both lawsuits alleged failure to adequately assess the potential impacts of the NEIDL on public health in alternative locations. In the Federal court proceedings, questions were raised specifically about the potential risks of the biosafety level 4 (BSL-4) laboratory. To address the concerns raised in these lawsuits, NIH established an independent Blue Ribbon Panel to advise the agency on comprehensively responding to the concerns raised by members of the community and by the courts. The Blue Ribbon Panel was established as a working group of the Advisory Committee to the NIH Director and was comprised of experts in infectious diseases, public health and epidemiology, risk assessment, environmental justice, risk communications, biosafety, and infectious disease modeling. At multiple points during the preparation of the Supplementary Risk Assessment, the NIH also consulted the National Research Council (NRC) Committee on Technical Input that had been critical of a previous draft NIH risk assessment for the NEIDL. With the technical and scientific guidance of the Blue Ribbon Panel and the NRC Committee on Technical Input as well as extensive public input, NIH prepared a Draft Supplementary Risk Assessment, which was published in the Federal Register on February 24, 2012. The publication of the Draft Supplementary Risk Assessment in the Federal Register began a 67-day public comment period. After a thorough consideration of comments received on the Draft Supplementary Risk Assessment, including those comments received during a public meeting held in Boston on April 19, 2012, NIH prepared a Final Supplementary Risk Assessment, notice of which was published in the Federal Register on July 6, 2012.

Decision

After careful consideration of the information and analyses presented in the Final Supplementary Risk Assessment, including the potential impacts on public health and safety arising from research involving infectious agents, as well as all public comments received during and after the assessment's preparation, the NIH has decided to reaffirm the decision reached in the agency's initial Record of Decision to implement the Selected Alternative, to partially fund the construction of a state-of-the-art National Biocontainment Laboratory (NBL), the National Emerging Infectious Diseases Laboratories (NEIDL), at the Boston University Medical Campus (BUMC) in Boston, Massachusetts described in the December 2005 Final EIS. The additional information provided from the Final Supplementary Risk Assessment results has reinforced the agency's original decision. The NIH's decision to reaffirm the ROD does not commit the NIH to support any specific research in the NEIDL in the future.

Alternatives Considered

The Final Supplementary Risk Assessment considered and compared the potential public health impacts of a biocontainment failure at three separate, proposed locations for the NEIDL. Those locations included an urban (the current BUMC site), a suburban (Tyngsborough, MA), and a rural (Peterborough, NH) setting. The results of the Supplementary Risk Assessment showed minimal differences in the risks of infections or fatalities to lab workers at the three different sites because the laboratory and its operations would be the same at all three sites. There are differences in the three sites with regard to population density and other features of the environment, such as availability of medical care. The possible effects of these differences on risks to the public were evaluated. The results show that no statistically significant differences can be concluded at the suburban and rural sites (Peterborough and Tyngsborough) compared to the urban site (Boston).

Factors Involved in the Decision

Throughout the course of the project, NIH engaged in extensive consultations with the Boston community. During the development of the Supplementary Risk Assessment for the NEIDL, public input was sought and considered multiple times before the report was finalized. In preparing its advice to the NIH for the Supplementary Risk Assessment, the Blue Ribbon Panel held multiple public meetings, including several in Boston at locations suggested by community members, to hear the concerns of the community and to solicit input on what scenarios and agents the community wished to see analyzed in the document. The approach taken to perform the Supplementary Risk Assessment, as well as the types of scenarios and agents studied in the Supplementary Risk Assessment, were thoroughly discussed and publicly vetted through the Blue Ribbon Panel and the NRC Committee on Technical Input. These two independent bodies provided technical advice that was then used to guide NIH through the risk assessment process. In order to help ensure that the Supplementary Risk Assessment was as comprehensive and technically and scientifically sound as possible, the NIH contracted with a leading consulting firm to perform the assessment. This firm engaged outside experts in infectious diseases and modeling to assist in preparing the assessment.

After extensive consultations with the Blue Ribbon Panel, the NRC Committee on Technical Input, and the public, the contractor preparing the Supplementary Risk Assessment identified and considered approximately 300 events that could potentially lead to loss of containment. The contractor grouped these 300 events initially into 30 categories of related events. Based on their likely risk, several of these events were selected to represent the overall group. The selected events include higher- and lower-risk events that occur in a variety of ways and expose different groups of people or the environment. Taking these factors into account, the possible events selected for detailed analysis in the Final Supplementary Risk Assessment were a needlestick accident, a centrifuge aerosol release, an earthquake, and transportation accidents.

To ensure examination of consequences with the most negative possible outcomes, mitigating features of the building systems, fully functional personal protective equipment, and standard operating procedures were not taken into account in the Supplementary Risk Assessment, which increased the risk by posing failures without taking into account mitigating features. For example, for purposes of the risk assessment, it was assumed that a needlestick would not be recognized and reported. Similarly, the risk assessment considered what would happen if a centrifuge release went undetected and unreported. In reality, lab personnel are trained to recognize and report such incidents, thus mitigating the consequences should such a lab accident occur.

The Final Supplementary Risk Assessment examined a variety of possible situations—including those that posed the maximum realistically expected risk that might expose laboratory workers and the general public to disease-causing microbes that will be studied in the NEIDL. While there is no such thing as “no risk”, the results of the analysis showed that the risk of infections or fatalities resulting from accidents or malevolent acts at the NEIDL are generally very low to only remotely possible. The risk assessment evaluated the NEIDL and proposed activities in its laboratories as well as the potential impacts to site-specific populations in the three alternative geographic locations.

Practicable Means To Avoid or Minimize Potential Environmental Harm From the Selected Alternative

All practicable means to avoid or minimize adverse environmental effects from the selected action have been identified and adopted. The NEIDL will be subject to oversight by numerous federal, state, and local entities including, but not limited to, the Centers for Disease Control (CDC) and Prevention, the NIH, and the Boston Public Health Commission. The NEIDL will also be subject to federal, state, and local pollution prevention, waste management, and environmental regulations. This level of oversight and regulation, in addition to NEIDL-specific laboratory standard operating procedures and researcher training should greatly minimize any chance of a pathogen being released into the environment.

Monitoring and Enforcement Program for Mitigation Measures

Boston University has established policies and procedures to ensure that the NEIDL complies with all applicable Federal, state, and local regulations. In addition, trained biosafety staff at Boston University will perform periodic laboratory inspections to ensure safety standards are rigorously upheld. Laboratory inspections will also be performed by the Boston Public Health Commission. The CDC will also perform inspections for those laboratories performing research with Select Agents. Projects requiring the use of BSL-3 and BSL-4 containment must be reviewed and approved by the Boston University Institutional Biosafety Committee (IBC). The Boston University IBC includes at least two members from the public who are not affiliated with Boston University. The Boston Public Health Commission will also review and approve projects requiring BL3 or BL4 containment. Finally, as an NIH grantee, Boston University is required to comply with the grant terms and conditions. These terms and conditions require Boston University to file an annual progress report with NIH that describes the use of any highly pathogenic agents or Select Agents in the past year.

Conclusion

The Final Supplementary Risk Assessment examined a variety of possible scenarios, including those that posed the maximum realistic risk that might result in laboratory workers or the general public having primary or secondary infections resulting from release of pathogens that might be studied in the NEIDL. While there can be no such thing as “no risk,” the results of this analysis show that the risk of infections resulting from accidents or malevolent acts at the NEIDL are generally very low to only remotely possible. This is largely due to the safeguards built into the facility, the low amounts of pathogens that will be present, and the culture of biosafety and training that will be integrated into everyday practice at the NEIDL and as well as due to oversight of the NEIDL by regulatory authorities, like the Boston Public Health Commission and the Centers for Disease Control and Prevention. The greatest risk posed by research in the NEIDL is to individuals conducting research in the building, not to the general public. The analysis did not show any statistically significant increase in risk to medically vulnerable populations when analyzed as a group or individually, as compared to what those risks would be at alternate sites. Based on these factors, NIH is reaffirming its prior Record of Decision, dated January 26, 2006, and concludes that high and maximum containment research could be conducted safely at the NEIDL based upon the current safeguards and engineering controls in place at the facility.

Dated: December 18, 2012.Daniel G. Wheeland,Director, Office of Research Facilities Development and Operations, National Institutes of Health.[FR Doc. 2012-31509 Filed 12-31-12; 8:45 am]BILLING CODE 4140-01-PDEPARTMENT OF THE INTERIORFish and Wildlife Service[FWS-HQ-IA-2012-N304; FXIA16710900000P5-123-FF09A30000]Endangered Species; Receipt of Applications for PermitAGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Notice of receipt of applications for permit.

SUMMARY:

We, the U.S. Fish and Wildlife Service, invite the public to comment on the following applications to conduct certain activities with endangered species. With some exceptions, the Endangered Species Act (ESA) prohibit activities with listed species unless Federal authorization is acquired that allows such activities.

DATES:

We must receive comments or requests for documents on or before February 1, 2013.

I. Public Comment ProceduresA. How do I request copies of applications or comment on submitted applications?

Send your request for copies of applications or comments and materials concerning any of the applications to the contact listed under ADDRESSES. Please include the Federal Register notice publication date, the PRT-number, and the name of the applicant in your request or submission. We will not consider requests or comments sent to an email or address not listed under ADDRESSES. If you provide an email address in your request for copies of applications, we will attempt to respond to your request electronically.

Please make your requests or comments as specific as possible. Please confine your comments to issues for which we seek comments in this notice, and explain the basis for your comments. Include sufficient information with your comments to allow us to authenticate any scientific or commercial data you include.

The comments and recommendations that will be most useful and likely to influence agency decisions are: (1) Those supported by quantitative information or studies; and (2) Those that include citations to, and analyses of, the applicable laws and regulations. We will not consider or include in our administrative record comments we receive after the close of the comment period (see DATES) or comments delivered to an address other than those listed above (see ADDRESSES).

B. May I review comments submitted by others?

Comments, including names and street addresses of respondents, will be available for public review at the street address listed under ADDRESSES. The public may review documents and other information applicants have sent in support of the application unless our allowing viewing would violate the Privacy Act or Freedom of Information Act. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

II. Background

To help us carry out our conservation responsibilities for affected species, and in consideration of section 10(a)(1)(A) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.), along with Executive Order 13576, “Delivering an Efficient, Effective, and Accountable Government,” and the President's Memorandum for the Heads of Executive Departments and Agencies of January 21, 2009—Transparency and Open Government (74 FR 4685; January 26, 2009), which call on all Federal agencies to promote openness and transparency in Government by disclosing information to the public, we invite public comment on these permit applications before final action is taken.

The applicant requests a permit to import two captive-bred specimens of resplendent quetzal (Pharomachrus mocinno) from Mexico for the purpose of enhancement of the survival of the species.

Applicant: St. Catherine's Island, Midway, GA; PRT-86728A

The applicant requests a permit to export biological samples derived from captive-bred specimens of Ring-tailed lemur (Lemur catta) to Canada for the purpose of enhancement of the survival of the species.

Applicant: Cinco Canyon Ranch, Fredericksburg, TX; PRT-89185A

The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for the scimitar-horned oryx (Oryx dammah) to enhance the species' propagation or survival. This notification covers activities to be conducted by the applicant over a 5-year period.

Applicant: Cinco Canyon Ranch, Fredericksburg, TX; PRT-89184A

The applicant requests a permit authorizing interstate and foreign commerce, export, and cull of excess scimitar-horned oryx (Oryx dammah) from the captive herd maintained at their facility, for the purpose of enhancement of the survival of the species. This notification covers activities to be conducted by the applicant over a 5-year period.

Applicant: Chahinkapa Park Zoo, Wahpeton, ND; PRT-81771A

The applicant requests a permit to import one captive-bred female Snow leopard (Uncia uncia) from Canada for the purpose of enhancement of the survival of the species.

Applicant: Greenville Zoo, Greenville SC; PRT-86831A

The applicant requests a permit to export two female captive-bred ring-tailed lemurs (Lemur catta) to Bermuda for the purpose of enhancement of the survival of the species. This notification covers activities to be conducted by the applicant over a 5-year period.

Multiple Applicants

The following applicants each request a permit to import the sport-hunted trophy of one male bontebok (Damaliscus pygargus pygargus) culled from a captive herd maintained under the management program of the Republic of South Africa, for the purpose of enhancement of the survival of the species.

We, the U.S. Fish and Wildlife Service (Service), have issued the following permits to conduct certain activities with endangered species, marine mammals, or both. We issue these permits under the Endangered Species Act (ESA) and Marine Mammal Protection Act (MMPA).

On the dates below, as authorized by the provisions of the ESA (16 U.S.C. 1531 et seq.), as amended, and/or the MMPA, as amended (16 U.S.C. 1361 et seq.), we issued requested permits subject to certain conditions set forth therein. For each permit for an endangered species, we found that (1) The application was filed in good faith, (2) The granted permit would not operate to the disadvantage of the endangered species, and (3) The granted permit would be consistent with the purposes and policy set forth in section 2 of the ESA.

Documents and other information submitted with these applications are available for review, subject to the requirements of the Privacy Act and Freedom of Information Act, by any party who submits a written request for a copy of such documents to: Division of Management Authority, U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, Room 212, Arlington, VA 22203; fax (703) 358-2280.

This document contains a correction to the land description contained in the notice regarding the final agency determination to acquire approximately 40 acres of land into trust for gaming purposes for the Enterprise Rancheria of Maidu Indians of California, which published on Monday, December 3, 2012, 77 FR 71612.

As published, the land description in the December 3, 2012, notice contains an error. On page 71612 of the December 3, 2012, Federal Register, in the first column, beginning on line 56 and continuing through to the second column, line 26, correct to read as follows:

A portion of the East half of Section 22, Township 14 North, Range 4 East, M.D.B.&M., described as follows:

Commence at the quarter section corner common to said Section 22 and Section 15, Township 14 North, Range 4 East, M.D.B.&M., and being marked by a brass monument stamped LS3341 in a monument well as shown on Record of Survey No. 2000-15 filed in Book 72 of Maps, Page 34, Yuba County Records; thence South 00°28′11″ East along the line dividing said Section 22 in to East and West halves 2650.73 feet to a brass monument stamped LS3341 in a monument well as shown on said Record of Survey No. 2000-15 and marking the center of said Section 22; thence North 89°31′24″ East 65.00 feet to a point on the East right-of-way line of Forty Mile Road; thence North 00°28′11″ West along said East right-of-way line of Forty Mile Road 45.53 feet to the point of beginning; thence from said point of beginning continue along said East right-of-way line of Forty Mile Road the following courses and distances: North 00°28′11″ West 1133.70 feet, thence North 05°14′27″ East 50.25 feet; thence North 00°28′11″ West 136.91 feet; thence leaving said East right-of-way line of Forty Mile Road North 87°00′10″ East 1315.48 feet; thence South 00°28′11″ East 1320.48 feet; thence South 87°59′10″ West 1320.48 feet to the point of beginning.

The above-described parcel is referred to as Yuba County Assessor's Parcel Number 014-280-095 (portion) containing approximately 40.00 acres, more or less.

This notice sets forth the date of the first meeting of the Fort Hancock 21st Century Advisory Committee.

DATES:

The public meeting of the Fort Hancock 21st Century Advisory Committee will be held on January 23 and 24, 2013, at 8:30 a.m. (EASTERN).

ADDRESSESS:

The Committee members will meet at Monmouth University, 400 Cedar Avenue, West Long Branch, NJ 07764. Please check www.forthancock21stcentury.org for exact building and room number.

Agenda: Committee meeting will consist of the following:

1. Welcome and introductions2. Administrative briefings, including legal and ethics requirements3. Discussion of the Committee's charter, goals and procedures4. The effect of Hurricane Sandy and its implications for the Committee5. Identifying key issues to be addressed by the Committee6. Future Committee activities, meeting schedule, work plan7. Public comment and8. Adjournment

The final agenda will be posted on www.forthancock21stcentury.org prior to each meeting.

FOR FURTHER INFORMATION CONTACT:

Further information concerning the meeting may be obtained from Robert Vohden, Office of Business Services, Gateway National Recreation Area, 210 New York Avenue, Staten Island, NY 10305, at (718) 354-4710 or email: admin@forthancock21stcentury.org, or visit the Advisory Committee Web site at www.forthancock21stcentury.org.

SUPPLEMENTARY INFORMATION:

Under section 10(a)(2) of the Federal Advisory Committee Act (5 U.S.C. App.). The purpose of the Committee is to provide advice to the Secretary of the Interior, through the Director of the National Park Service, on the development of a reuse plan and on matters relating to future uses of certain buildings at Fort Hancock within Gateway National Recreation Area.

The meeting is open to the public. Interested members of the public may present, either orally or through written comments, information for the Committee to consider during the public meeting. Attendees and those wishing to provide comment are strongly encouraged to preregister through the contact information provided. The public will be able to comment on the first day from 4:00 p.m. to 4:45 p.m. and on the second day from 2:00 p.m. to 2:45 p.m. Written comments will be accepted prior to, during or after the meeting. Due to time constraints during the meeting, the Committee is not able to read written public comments submitted into the record. Individuals or groups requesting to make oral comments at the public Committee meeting will be limited to no more than 5 minutes per speaker.

Before including your address, telephone number, email address, or other personal indentifying information in your written comments, you should be aware that your entire comment including your personal identifying information may be made publicly available. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. All comments will be made part of the public record and will be electronically distributed to all Committee members.

Notice is hereby given that the U.S. International Trade Commission has received a complaint entitled Certain Wireless Communications Equipment and Articles Therein, DN 2926; the Commission is soliciting comments on any public interest issues raised by the complaint or complainant's filing under section 210.8(b) of the Commission's Rules of Practice and Procedure (19 CFR 210.8(b)).

FOR FURTHER INFORMATION CONTACT:

Lisa R. Barton, Acting Secretary to the Commission, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-2000. The public version of the complaint can be accessed on the Commission's electronic docket (EDIS) at http://edis.usitc.gov, and will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-2000.

General information concerning the Commission may also be obtained by accessing its Internet server (http://www.usitc.gov). The public record for this investigation may be viewed on the Commission's electronic docket (EDIS) at http://edis.usitc.gov. Hearing-impaired persons are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on (202) 205-1810.

SUPPLEMENTARY INFORMATION:

The Commission has received a complaint and a submission pursuant to section 210.8(b) of the Commission's Rules of Practice and Procedure filed on behalf of Samsung Electronics Co., Ltd. and Samsung Telecommunications America, LLC on December 21, 2012. The complaint alleges violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain wireless communications equipment and articles therein. The complaint names as respondents Ericsson Inc. of TX and Telefonaktiebolaget LM Ericsson of Sweden.

Proposed respondents, other interested parties, and members of the public are invited to file comments, not to exceed five (5) pages in length, inclusive of attachments, on any public interest issues raised by the complaint or section 210.8(b) filing. Comments should address whether issuance of the relief specifically requested by the complainant in this investigation would affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.

In particular, the Commission is interested in comments that:

(i) Explain how the articles potentially subject to the requested remedial orders are used in the United States;

(ii) Identify any public health, safety, or welfare concerns in the United States relating to the requested remedial orders;

(iii) Identify like or directly competitive articles that complainant, its licensees, or third parties make in the United States which could replace the subject articles if they were to be excluded;

(iv) Indicate whether complainant, complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to the requested exclusion order and/or a cease and desist order within a commercially reasonable time; and

(v) Explain how the requested remedial orders would impact United States consumers.

Written submissions must be filed no later than by close of business, eight calendar days after the date of publication of this notice in the Federal Register. There will be further opportunities for comment on the public interest after the issuance of any final initial determination in this investigation.

Persons filing written submissions must file the original document electronically on or before the deadlines stated above and submit 8 true paper copies to the Office of the Secretary by noon the next day pursuant to section 210.4(f) of the Commission's Rules of Practice and Procedure (19 CFR 210.4(f)). Submissions should refer to the docket number (“Docket No. 2926”) in a prominent place on the cover page and/or the first page. (See Handbook for Electronic Filing Procedures, http://www.usitc.gov/secretary/fed_reg_notices/rules/handbook_on_electronic_filing.pdf). Persons with questions regarding filing should contact the Secretary (202-205-2000).

Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment. See 19 CFR 201.6. Documents for which confidential treatment by the Commission is properly sought will be treated accordingly. All nonconfidential written submissions will be available for public inspection at the Office of the Secretary and on EDIS.

This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and of sections 201.10 and 210.8(c) of the Commission's Rules of Practice and Procedure (19 CFR 201.10 and 210.8(c)).

Notice is hereby given that the U.S. International Trade Commission has received a complaint entitled Certain Cases For Portable Electronic Devices, DN 2927; the Commission is soliciting comments on any public interest issues raised by the complaint or complainant's filing under section 210.8(b) of the Commission's Rules of Practice and Procedure (19 CFR 210.8(b)).

FOR FURTHER INFORMATION CONTACT:

Lisa R. Barton, Acting Secretary to the Commission, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-2000. The public version of the complaint can be accessed on the Commission's electronic docket (EDIS) at http://edis.usitc.gov, and will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-2000.

General information concerning the Commission may also be obtained by accessing its Internet server (http://www.usitc.gov). The public record for this investigation may be viewed on the Commission's electronic docket (EDIS) at http://edis.usitc.gov. Hearing-impaired persons are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on (202) 205-1810.

SUPPLEMENTARY INFORMATION:

The Commission has received a complaint and a submission pursuant to section 210.8(b) of the Commission's Rules of Practice and Procedure filed on behalf of Speculative Product Design, LLC on December 26, 2012. The complaint alleges violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain cases for portable electronic devices. The complaint names as respondents Global Digital Star Industry, Ltd. of China; JWIN Electronics Corp., (d/b/a iLuv) of NY; Project Horizon, Inc. (d/b/a InMotion Entertainment) of FL; Superior Communications, Inc. (d/b/a PureGear) of CA; and Jie Sheng Technology of Taiwan.

Proposed respondents, other interested parties, and members of the public are invited to file comments, not to exceed five (5) pages in length, inclusive of attachments, on any public interest issues raised by the complaint or section 210.8(b) filing. Comments should address whether issuance of the relief specifically requested by the complainant in this investigation would affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.

In particular, the Commission is interested in comments that:

(i) Explain how the articles potentially subject to the requested remedial orders are used in the United States;

(ii) identify any public health, safety, or welfare concerns in the United States relating to the requested remedial orders;

(iii) identify like or directly competitive articles that complainant, its licensees, or third parties make in the United States which could replace the subject articles if they were to be excluded;

(iv) indicate whether complainant, complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to the requested exclusion order and/or a cease and desist order within a commercially reasonable time; and

(v) explain how the requested remedial orders would impact United States consumers.

Written submissions must be filed no later than by close of business, eight calendar days after the date of publication of this notice in the Federal Register. There will be further opportunities for comment on the public interest after the issuance of any final initial determination in this investigation.

Persons filing written submissions must file the original document electronically on or before the deadlines stated above and submit 8 true paper copies to the Office of the Secretary by noon the next day pursuant to section 210.4(f) of the Commission's Rules of Practice and Procedure (19 CFR 210.4(f)). Submissions should refer to the docket number (“Docket No. 2927”) in a prominent place on the cover page and/or the first page. (See Handbook for Electronic Filing Procedures, http://www.usitc.gov/secretary/fed_reg_notices/rules/handbook_on_electronic_filing.pdf). Persons with questions regarding filing should contact the Secretary (202-205-2000).

Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment. See 19 CFR 201.6. Documents for which confidential treatment by the Commission is properly sought will be treated accordingly. All nonconfidential written submissions will be available for public inspection at the Office of the Secretary and on EDIS.

This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and of sections 201.10 and 210.8(c) of the Commission's Rules of Practice and Procedure (19 CFR 201.10, 210.8(c)).

Notice is hereby given that the U.S. International Trade Commission has determined not to review an ID (Order No. 4) of the administrative law judge (“ALJ”) granting Complainants' unopposed motion for leave to amend the complaint and notice of investigation in the above-captioned investigation.

FOR FURTHER INFORMATION CONTACT:

James A. Worth, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-3065. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-2000. General information concerning the Commission may also be obtained by accessing its Internet server (http://www.usitc.gov). The public record for this investigation may be viewed on the Commission's electronic docket (EDIS) at http://edis.usitc.gov. Hearing-impaired persons are advised that information on this matter can be obtained by contacting the Commission's TDD terminal on (202) 205-1810.

SUPPLEMENTARY INFORMATION:

The Commission instituted this investigation on October 16, 2012, based on a complaint filed on September 10, 2012, on behalf of South Alabama Medical Science Foundation of Mobile, Alabama; Merck & Cie of Altdorf, Switzerland; and Pamlab LLC of Covington, Louisiana LLC (collectively, “Complainants”). 77 FR 63336 (October 16, 2012). The complaint alleged violations of Section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, in the sale for importation, importation, or sale after importation into the United States of certain folate nutraceutical products and l-methylfolate raw ingredients used therein that infringe one or more of claims 37, 39, 40, 47, 66, 67, 73, 76,78-81, 83, 84, 86-89, 91, 92, 94-97, 99, 100, 110, 111, 113, 117, and 121 of U.S. Patent No. 5,997,915 (“the `915 patent”); claims 22, 26, and 32-38 of U.S. Patent No. 6,673,381 (“the `381 patent”); claims l, 4-6, and 15 of U.S. Patent No. 7,172,778; and claims 1-3, 5, 6, 8, 9, 11-15, and 19-22 of U.S. Patent No. 6,011,040 (“the `040 patent”). The Commission's notice of investigation named as respondents Gnosis SpA of Desio, Italy; Gnosis Bioresearch SA of Sant'Antonino, Switzerland; Gnosis USA Inc. of Doylestown, Pennsylvania; and Macoven Pharmaceuticals LLC of Magnolia, Texas.

On November 14, 2012, Complainants filed an unopposed motion for leave to amend the Complaint and Notice of Investigation to add Viva Pharmaceuticals LLC as a respondent in this investigation and to assert additional claims of inducement of infringement with regard the `915 patent, the `381 patent, and the `040 patent against respondents Gnosis SpA, Gnosis Bioresearch SA, and Gnosis USA, Inc. The Complainants argued good cause exists because the alleged activity was not previously known to them, and that there would be no prejudice to the parties or to the public interest.

On November 15, 2012, the ALJ issued the ID, granting the motion. No petitions for review were filed.

Having considered the ID and the relevant portions of the record, the Commission has determined not to review the subject ID.

This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and of section 210.42(h) of the Commission's Rules of Practice and Procedure (19 CFR 210.42(h)).

Notice is hereby given that, on December 6, 2012, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301 et seq. (“the Act”), Interchangeable Virtual Instruments Foundation, Inc. has filed written notifications simultaneously with the Attorney General and the Federal Trade Commission disclosing changes in its membership. The notifications were filed for the purpose of extending the Act's provisions limiting the recovery of antitrust plaintiffs to actual damages under specified circumstances. Specifically, Spectrum Systementwicklung Microelectronic GmbH, Grosshansdorf, GERMANY, has been added as a party to this venture.

No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and Interchangeable Virtual Instruments Foundation, Inc. intends to file additional written notifications disclosing all changes in membership.

On May 29, 2001, Interchangeable Virtual Instruments Foundation, Inc. filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the Federal Register pursuant to Section 6(b) of the Act on July 30, 2001 (66 FR 39336).

The last notification was filed with the Department on January 26, 2012. A notice was published in the Federal Register pursuant to Section 6(b) of the Act on February 16, 2012 (77 FR 9266).

Notice is hereby given that, on December 6, 2012, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301 et seq. (“the Act”), PXI Systems Alliance, Inc. has filed written notifications simultaneously with the Attorney General and the Federal Trade Commission disclosing changes in its membership. The notifications were filed for the purpose of extending the Act's provisions limiting the recovery of antitrust plaintiffs to actual damages under specified circumstances. Specifically, Conduant Corporation, Longmont, CO; 4Links Limited, Milton Keynes, UNITED KINGDOM; MagiQ Technologies, Somerville, MA; Tracewell Systems, Westerville, OH; Beijing HWA-TECH Information System Co. Ltd., Beijing, Shuguanghuayuan, PEOPLE'S REPUBLIC OF CHINA; and Simbol Test Systems, Inc., Gatineau, Quebec, CANADA, have been added as parties to this venture.

No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and PXI Systems Alliance, Inc. intends to file additional written notifications disclosing all changes in membership.

On November 22, 2000, PXI Systems Alliance, Inc. filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the Federal Register pursuant to Section 6(b) of the Act on March 8, 2001 (66 FR 13971).

The last notification was filed with the Department on June 28, 2012. A notice was published in the Federal Register pursuant to Section 6(b) of the Act on July 25, 2012 (77 FR 43615).

Patricia A. Brink,Director of Civil Enforcement, Antitrust Division.[FR Doc. 2012-31469 Filed 12-31-12; 8:45 am]BILLING CODE PDEPARTMENT OF JUSTICEAntitrust DivisionNotice Pursuant to the National Cooperative Research and Production Act of 1993—DVD Copy Control Association

Notice is hereby given that, on December 3, 2012, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301 et seq. (“the Act”), DVD Copy Control Association (“DVD CCA”) has filed written notifications simultaneously with the Attorney General and the Federal Trade Commission disclosing changes in its membership. The notifications were filed for the purpose of extending the Act's provisions limiting the recovery of antitrust plaintiffs to actual damages under specified circumstances. Specifically, CSR Technology Inc., Sunnyvale, CA; Guangdong Coagent Electronics S&T Co., Ltd., Guangdong, PEOPLE'S REPUBLIC OF CHINA; Hong Kong ASA Multimedia Co., Ltd., Kowloon, HONG KONG-CHINA; National Semiconductor Corporation, Santa Clara, CA; sMedio, Inc., Tokyo, JAPAN; and VIXS Systems Inc., Toronto, CANADA, have been added as parties to this venture.

In addition, Cinram International has changed its name to Cinram Group Inc., Toronto, CANADA.

No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and DVD CCA intends to file additional written notifications disclosing all changes in membership.

On April 11, 2001, DVD CCA filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the Federal Register pursuant to Section 6(b) of the Act on August 3, 2001 (66 FR 40727).

The last notification was filed with the Department on August 24, 2012. A notice was published in the Federal Register pursuant to Section 6(b) of the Act on September 24, 2012 (77 FR 58870).

NARA is giving public notice that the agency has submitted to OMB for approval the information collection described in this notice. The public is invited to comment on the proposed information collection pursuant to the Paperwork Reduction Act of 1995.

DATES:

Written comments must be submitted to OMB at the address below on or before February 1, 2013 to be assured of consideration.

Requests for additional information or copies of the proposed information collection and supporting statement should be directed to Tamee Fechhelm at telephone number 301-837-1694 or fax number 301-713-7409.

SUPPLEMENTARY INFORMATION:

Pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104-13), NARA invites the general public and other Federal agencies to comment on proposed information collections. NARA published a notice of proposed collection for this information collection on August 21, 2012 (77 FR 50532). No comments were received. NARA has submitted the described information collection to OMB for approval.

In response to this notice, comments and suggestions should address one or more of the following points: (a) Whether the proposed information collections are necessary for the proper performance of the functions of NARA; (b) the accuracy of NARA's estimate of the burden of the proposed information collections; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including the use of information technology; and (e) whether small businesses are affected by these collections. In this notice, NARA is soliciting comments concerning the following information collection:

1. Title: Forms Relating to Civilian Service Records.

OMB number: 3095-0037.

Agency form number: NA Forms 13022, 13064, 13068.

Type of review: Regular.

Affected public: Former Federal civilian employees, their authorized representatives, state and local governments, and businesses.

Estimated number of respondents: 32,060.

Estimated time per response: 5 minutes.

Frequency of response: On occasion, when individuals desire to acquire information from Federal civilian employee personnel or medical records.

Estimated total annual burden hours: 2,671 hours.

Abstract: In accordance with rules issued by the Office of Personnel Management, the National Personnel Records Center (NPRC) of the National Archives and Records Administration (NARA) administers Official Personnel Folders (OPF) and Employee Medical Folders (EMF) of former Federal civilian employees. When former Federal civilian employees and other authorized individuals request information from or copies of documents in OPF or EMF, they must provide in forms or in letters certain information about the employee and the nature of the request. The NA Form 13022, Returned Request Form, is used to request additional information about the former Federal employee. The NA Form 13064, Reply to Request Involving Relief Agencies, is used to request additional information about the former relief agency employee. The NA Form 13068, Walk-In Request for OPM Records or Information, is used by members of the public, with proper authorization, to request a copy of a Personnel or Medical record.

2. Title: Volunteer Service Application.

OMB number: 3095-0060.

Agency form number: NA Forms 6045, 6045a, 6045b. and 6045c.

Type of review: Regular.

Affected public: Individuals or households.

Estimated number of respondents: 500.

Estimated time per response: 25 minutes.

Frequency of response: On occasion.

Estimated total annual burden hours: 208 hours.

Abstract: NARA uses volunteer resources to enhance its services to the public and to further its mission of providing ready access to essential evidence. Volunteers assist in outreach and public programs and provide technical and research support for administrative, archival, library, and curatorial staff. NARA uses a standard way to recruit volunteers and assess the qualifications of potential volunteers. The NA Form 6045, Volunteer Service Application, is used by members of the public to signal their interest in being a NARA volunteer and to identify their qualifications for this work. Once the applicant has been selected, the NA Form 6045a, Standards of Conduct for Volunteers, NA Form 6045b, Volunteer or Intern Emergency and Medical Consent, NA Form 6045c, Volunteer or Intern Confidentiality Statement, are filled out.

Request for indirect license transfer; opportunity for hearing, to petition for leave to intervene, and to comment; order.

DATES:

Comments must be filed by February 1, 2013. Requests for a hearing or leave to intervene must be filed by January 22, 2013. Any potential party as defined in § 2.4 of Title 10 of the Codes of Federal Regulations (10 CFR) who believes access to Sensitive Unclassified Non-Safeguards Information (SUNSI) is necessary to respond to this notice must request document access by January 14, 2013.

ADDRESSES:

You may access information and comment submissions related to this document, which the NRC possesses and is publicly available, by searching on http://www.regulations.gov under Docket ID NRC-2012-0301. You may submit comments by any of the following methods (unless this document describes a different method for submitting comments on a specific subject):

Please refer to Docket ID NRC-2012-0301 when contacting the NRC about the availability of information regarding this document. You may access information related to this document, which the NRC possesses and is publicly available, by any of the following methods:

• NRC's Agencywide Documents Access and Management System (ADAMS): You may access publicly available documents online in the NRC Library at http://www.nrc.gov/reading-rm/adams.html. To begin the search, select “ADAMS Public Documents” and then select “Begin Web-based ADAMS Search.” For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or by email to pdr.resource@nrc.gov. Portions of the application dated October 11, 2012, contain proprietary information, and accordingly, those portions are being withheld from public disclosure. A redacted version of the October 11, 2012, application is available in ADAMS under Accession No. ML12312A157. The supplemental letter dated October 24, 2012, is publicly available in ADAMS under Accession No. ML12312A071.

Please include Docket ID NRC-2012-0301 in the subject line of your comment submission, in order to ensure that the NRC is able to make your comment submission available to the public in this docket.

The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at http://www.regulations.gov as well as enter the comment submissions into ADAMS. The NRC does not routinely edit comment submissions to remove identifying or contact information.

If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submissions. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment submissions into ADAMS.

II. Introduction

The U.S. Nuclear Regulatory Commission (NRC) is considering the issuance of an order under § 50.80 approving the indirect transfer of control of the Facility Operating License Nos. NPF-87 and NPF-89, respectively, for the Comanche Peak Nuclear Power Plant, Units 1 and 2 (CPNPP), currently held by Luminant Generation Company LLC, as owner and licensed operator. The indirect transfer of control would result from the proposed conversion of Energy Future Competitive Holdings Company (EFCH) converting from a Texas corporation to a Delaware limited liability corporation.

According to the application dated October 11, 2012, filed by Luminant Generation Company LLC, acting on behalf of Energy Future Holdings Corporation (EFH), EFCH, Texas Competitive Electric Holdings Company LLC, and Luminant Holding Company LLC, the applicants, seek approval pursuant to 10 CFR 50.80 of the indirect transfer of control of CPNPP, Facility Operating License Nos. NPF-87 and NPF-89. The transfers also involve the general license for CPNPP Independent Spent Fuel Storage Facility Installation Facility.

The EFCH will convert from a Texas corporation to a Delaware limited liability corporation. Following the conversion, EFCH will remain a wholly owned subsidiary of EFH, and EFH will retain the same assets, liabilities, owners, board of directors, and management. There will be no change of control of EFH, EFCH, or Luminant Power as a result of this internal restructuring.

No physical changes to the CPNPP facilities or operational changes are being proposed in the application.

Pursuant to 10 CFR 50.80, no license, or any right thereunder, shall be transferred, directly or indirectly, through transfer of control of the license, unless the Commission shall give its consent in writing. The Commission will approve an application for the indirect transfer of a license, if the Commission determines that the proposed transfer will not affect the qualifications of the licensee to hold the license, and that the transfer is otherwise consistent with applicable provisions of law, regulations, and orders issued by the Commission pursuant thereto.

The filing of requests for hearing and petitions for leave to intervene, and written comments with regard to the license transfer application, are discussed below.

III. Opportunity to Request a Hearing; Petition for Leave To Intervene

Within 20 days from the date of publication of this notice, any person(s) whose interest may be affected by the Commission's action on the application may request a hearing and intervention via electronic submission through the NRC's E-filing system. Requests for a hearing and petitions for leave to intervene should be filed in accordance with the Commission's rules of practice set forth in Subpart C “Rules of General Applicability: Hearing Requests, Petitions to Intervene, Availability of Documents, Selection of Specific Hearing Procedures, Presiding Officer Powers, and General Hearing Management for NRC Adjudicatory Hearings,” of 10 CFR, Part 2. In particular, such requests and petitions must comply with the requirements set forth in 10 CFR 2.309, which is available at the NRC's PDR, located at O1F21, 11555 Rockville Pike (first floor), Rockville, Maryland 20852. The NRC regulations are accessible electronically from the NRC Library on the NRC's public Web site at http://www.nrc.gov/reading-rm/doc-collections/cfr/.

A State, local governmental body, Federally-recognized Indian Tribe, or agency thereof may submit a petition to the Commission to participate as a party under 10 CFR 2.309(h)(1) and (2). The petition should state the nature and extent of the petitioner's interest in the proceeding. The petition should be submitted to the Commission by January 22, 2013. The petition must be filed in accordance with the filing instructions in section IV of this document, and should meet the requirements for petitions for leave to intervene set forth in this section, except that under 2.309(h)(2) a State, local governmental body, or Federally-recognized Indian tribe does not need to address the standing requirements in 10 CFR 2.309(d) if the facility is located within its boundaries. A State, local governmental body, Federally-recognized Indian Tribe, or agency thereof may also have the opportunity to participate under 10 CFR 2.315(c).

Requests for hearing, petitions for leave to intervene, and motions for leave to file new or amended contentions that are filed after the 20-day deadline will not be entertained absent a determination by the presiding officer that the filing demonstrates good cause by satisfying the following three factors in 10 CFR 2.309(c)(1): (i) The information upon which the filing is based was not previously available; (ii) the information upon which the filing is based is materially different from information previously available; and (iii) the filing has been submitted in a timely fashion based on the availability of the subsequent information.

IV. Electronic Submissions (E-Filing)

All documents filed in NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with the NRC's E-Filing rule (72 FR 49139; August 28, 2007). The E-Filing process requires participants to submit and serve all adjudicatory documents over the Internet, or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek an exemption in accordance with the procedures described below.

To comply with the procedural requirements of E-Filing, at least 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at hearing.docket@nrc.gov, or by telephone at 301-415-1677, to request (1) a digital identification (ID) certificate, which allows the participant (or its counsel or representative) to digitally sign documents and access the E-Submittal server for any proceeding in which it is participating; and (2) advise the Secretary that the participant will be submitting a request or petition for hearing (even in instances in which the participant, or its counsel or representative, already holds an NRC-issued digital ID certificate). Based upon this information, the Secretary will establish an electronic docket for the hearing in this proceeding if the Secretary has not already established an electronic docket.

Information about applying for a digital ID certificate is available on the NRC's public Web site at http://www.nrc.gov/site-help/e-submittals/apply-certificates.html. System requirements for accessing the E-Submittal server are detailed in the NRC's “Guidance for Electronic Submission,” which is available on the NRC's public Web site at http://www.nrc.gov/site-help/e-submittals.html. Participants may attempt to use other software not listed on the Web site, but should note that the NRC's E-Filing system does not support unlisted software, and the NRC Meta System Help Desk will not be able to offer assistance in using unlisted software.

If a participant is electronically submitting a document to the NRC in accordance with the E-Filing rule, the participant must file the document using the NRC's online, Web-based submission form. In order to serve documents through the Electronic Information Exchange System, users will be required to install a Web browser plug-in from the NRC's public Web site. Further information on the Web-based submission form, including the installation of the Web browser plug-in, is available on the NRC's public Web site at http://www.nrc.gov/site-help/e-submittals.html.

Once a participant has obtained a digital ID certificate and a docket has been created, the participant can then submit a request for hearing or petition for leave to intervene. Submissions should be in Portable Document Format (PDF) in accordance with NRC guidance available on the NRC's public Web site at http://www.nrc.gov/site-help/e-submittals.html. A filing is considered complete at the time the documents are submitted through the NRC's E-Filing system. To be timely, an electronic filing must be submitted to the E-Filing system no later than 11:59 p.m. Eastern Time on the due date. Upon receipt of a transmission, the E-Filing system time-stamps the document and sends the submitter an email notice confirming receipt of the document. The E-Filing system also distributes an email notice that provides access to the document to the NRC's Office of the General Counsel and any others who have advised the Office of the Secretary that they wish to participate in the proceeding, so that the filer need not serve the documents on those participants separately. Therefore, applicants and other participants (or their counsel or representative) must apply for and receive a digital ID certificate before a hearing request/petition to intervene is filed so that they can obtain access to the document via the E-Filing system.

A person filing electronically using the NRC's adjudicatory E-Filing system may seek assistance by contacting the NRC Meta System Help Desk through the “Contact Us” link located on the NRC's public Web site at http://www.nrc.gov/site-help/e-submittals.html, by email to MSHD.Resource@nrc.gov, or by a toll-free call to 1-866-672-7640. The NRC Meta System Help Desk is available between 8 a.m. and 8 p.m., Eastern Time, Monday through Friday, excluding government holidays.

Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland, 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. A presiding officer, having granted an exemption request from using E-Filing, may require a participant or party to use E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists.

Documents submitted in adjudicatory proceedings will appear in NRC's electronic hearing docket which is available to the public at http://ehd1.nrc.gov/ehd/, unless excluded pursuant to an order of the Commission, or the presiding officer. Participants are requested not to include personal privacy information, such as social security numbers, home addresses, or home phone numbers in their filings, unless an NRC regulation or other law requires submission of such information. With respect to copyrighted works, except for limited excerpts that serve the purpose of the adjudicatory filings and would constitute a Fair Use application, participants are requested not to include copyrighted materials in their submission.

The Commission will issue a notice or order granting or denying a hearing request or intervention petition, designating the issues for any hearing that will be held and designating the Presiding Officer. A notice granting a hearing will be published in the Federal Register and served on the parties to the hearing.

Within 30 days from the date of publication of this notice, persons may submit written comments regarding the license transfer application, as provided for in 10 CFR 2.1305. The Commission will consider and, if appropriate, respond to these comments, but such comments will not otherwise constitute part of the decisional record. Comments should be submitted to the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemakings and Adjudications Staff, and should cite the publication date and page number of this Federal Register notice.

For further details with respect to this application, see the application dated October 11, 2012, as supplemented by letter dated October 24, 2012.

Order Imposing Procedures for Access to Sensitive Unclassified Non-Safeguards Information for Contention Preparation.

A. This Order contains instructions regarding how potential parties to this proceeding may request access to documents containing Sensitive Unclassified Non-Safeguards Information (SUNSI).

B. Within 10 days after publication of this notice of hearing and opportunity to petition for leave to intervene, any potential party who believes access to SUNSI is necessary to respond to this notice may request such access. A “potential party” is any person who intends to participate as a party by demonstrating standing and filing an admissible contention under 10 CFR 2.309. Requests for access to SUNSI submitted later than 10 days after publication will not be considered absent a showing of good cause for the late filing, addressing why the request could not have been filed earlier.

C. The requestor shall submit a letter requesting permission to access SUNSI to the Office of the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemakings and Adjudications Staff, and provide a copy to the Associate General Counsel for Hearings, Enforcement and Administration, Office of the General Counsel, Washington, DC 20555-0001. The expedited delivery or courier mail address for both offices is: U.S. Nuclear Regulatory Commission, 11555 Rockville Pike, Rockville, Maryland 20852. The email address for the Office of the Secretary and the Office of the General Counsel are Hearing.Docket@nrc.gov and OGCmailcenter@nrc.gov, respectively.1 The request must include the following information:

1 While a request for hearing or petition to intervene in this proceeding must comply with the filing requirements of the NRC's “E-Filing Rule,” the initial request to access SUNSI under these procedures should be submitted as described in this paragraph.

(1) A description of the licensing action with a citation to this Federal Register notice;

(2) The name and address of the potential party and a description of the potential party's particularized interest that could be harmed by the action identified in C.(1); and

(3) The identity of the individual or entity requesting access to SUNSI and the requestor's basis for the need for the information in order to meaningfully participate in this adjudicatory proceeding. In particular, the request must explain why publicly available versions of the information requested would not be sufficient to provide the basis and specificity for a proffered contention.

D. Based on an evaluation of the information submitted under paragraph C.(3) the NRC staff will determine within 10 days of receipt of the request whether:

(1) There is a reasonable basis to believe the petitioner is likely to establish standing to participate in this NRC proceeding; and

(2) The requestor has established a legitimate need for access to SUNSI.

E. If the NRC staff determines that the requestor satisfies both D.(1) and D.(2) above, the NRC staff will notify the requestor in writing that access to SUNSI has been granted. The written notification will contain instructions on how the requestor may obtain copies of the requested documents, and any other conditions that may apply to access to those documents. These conditions may include, but are not limited to, the signing of a Non-Disclosure Agreement or Affidavit, or Protective Order 2 setting forth terms and conditions to prevent the unauthorized or inadvertent disclosure of SUNSI by each individual who will be granted access to SUNSI.

2 Any motion for Protective Order or draft Non-Disclosure Affidavit or Agreement for SUNSI must be filed with the presiding officer or the Chief Administrative Judge if the presiding officer has not yet been designated, within 30 days of the deadline for the receipt of the written access request.

F. Filing of Contentions. Any contentions in these proceedings that are based upon the information received as a result of the request made for SUNSI must be filed by the requestor no later than 20 days after the requestor is granted access to that information. However, if more than 20 days remain between the date the petitioner is granted access to the information and the deadline for filing all other contentions (as established in the notice of hearing or opportunity for hearing), the petitioner may file its SUNSI contentions by that later deadline. This provision does not extend the time for filing a request for a hearing and petition to intervene, which must comply with the requirements of 10 CFR 2.309.

G. Review of Denials of Access.

(1) If the request for access to SUNSI is denied by the NRC staff either after a determination on standing and need for access, or after a determination on trustworthiness and reliability, the NRC staff shall immediately notify the requestor in writing, briefly stating the reason or reasons for the denial.

(2) The requestor may challenge the NRC staff's adverse determination by filing a challenge within 5 days of receipt of that determination with: (a) The presiding officer designated in this proceeding; (b) if no presiding officer has been appointed, the Chief Administrative Judge, or if he or she is unavailable, another administrative judge, or an administrative law judge with jurisdiction pursuant to 10 CFR 2.318(a); or (c) if another officer has been designated to rule on information access issues, with that officer.

H. Review of Grants of Access. A party other than the requestor may challenge an NRC staff determination granting access to SUNSI whose release would harm that party's interest independent of the proceeding. Such a challenge must be filed with the Chief Administrative Judge within 5 days of the notification by the NRC staff of its grant of access.

If challenges to the NRC staff determinations are filed, these procedures give way to the normal process for litigating disputes concerning access to information. The availability of interlocutory review by the Commission of orders ruling on such NRC staff determinations (whether granting or denying access) is governed by 10 CFR 2.311.3

3 Requestors should note that the filing requirements of the NRC's E-Filing Rule (72 FR 49139; August 28, 2007) apply to appeals of NRC staff determinations (because they must be served on a presiding officer or the Commission, as applicable), but not to the initial SUNSI request submitted to the NRC staff under these procedures.

I. The Commission expects that the NRC staff and presiding officers (and any other reviewing officers) will consider and resolve requests for access to SUNSI, and motions for protective orders, in a timely fashion in order to minimize any unnecessary delays in identifying those petitioners who have standing and who have propounded contentions meeting the specificity and basis requirements in 10 CFR Part 2. Attachment 1 to this Order summarizes the general target schedule for processing and resolving requests under these procedures.

It is so ordered.

Dated at Rockville, Maryland, this 26th day of December, 2012.

For the Nuclear Regulatory Commission.

Andrew L. Bates,Acting Secretary of the Commission.Attachment 1—General Target Schedule for Processing and Resolving Requests for Access to Sensitive Unclassified Non-Safeguards Information in This ProceedingDayEvent/activity0Publication of Federal Register notice of hearing and opportunity to petition for leave to intervene, including order with instructions for access requests.10Deadline for submitting requests for access to Sensitive Unclassified Non-Safeguards Information (SUNSI) with information: Supporting the standing of a potential party identified by name and address; describing the need for the information in order for the potential party to participate meaningfully in an adjudicatory proceeding.20Deadline for submitting petition for intervention containing: (i) Demonstration of standing; (ii) all contentions whose formulation does not require access to SUNSI (+25 Answers to petition for intervention; +7 requestor/petitioner reply).20Nuclear Regulatory Commission (NRC) staff informs the requestor of the staff's determination whether the request for access provides a reasonable basis to believe standing can be established and shows need for SUNSI. (NRC staff also informs any party to the proceeding whose interest independent of the proceeding would be harmed by the release of the information.) If NRC staff makes the finding of need for SUNSI and likelihood of standing, NRC staff begins document processing (preparation of redactions or review of redacted documents).25If NRC staff finds no “need” or no likelihood of standing, the deadline for requestor/petitioner to file a motion seeking a ruling to reverse the NRC staff's denial of access; NRC staff files copy of access determination with the presiding officer (or Chief Administrative Judge or other designated officer, as appropriate). If NRC staff finds “need” for SUNSI, the deadline for any party to the proceeding whose interest independent of the proceeding would be harmed by the release of the information to file a motion seeking a ruling to reverse the NRC staff's grant of access.30Deadline for NRC staff reply to motions to reverse NRC staff determination(s).40(Receipt +30) If NRC staff finds standing and need for SUNSI, deadline for NRC staff to complete information processing and file motion for Protective Order and draft Non-Disclosure Affidavit. Deadline for applicant/licensee to file Non-Disclosure Agreement for SUNSI.AIf access granted: Issuance of presiding officer or other designated officer decision on motion for protective order for access to sensitive information (including schedule for providing access and submission of contentions) or decision reversing a final adverse determination by the NRC staff.A + 3Deadline for filing executed Non-Disclosure Affidavits. Access provided to SUNSI consistent with decision issuing the protective order.A + 23Deadline for submission of contentions whose development depends upon access to SUNSI. However, if more than 25 days remain between the petitioner's receipt of (or access to) the information and the deadline for filing all other contentions (as established in the notice of hearing or opportunity for hearing), the petitioner may file its SUNSI contentions by that later deadline.A + 48(Contention receipt +25) Answers to contentions whose development depends upon access to SUNSI.A + 55(Answer receipt +7) Petitioner/Intervenor reply to answers.>A + 55Decision on contention admission.[FR Doc. 2012-31527 Filed 12-31-12; 8:45 am]BILLING CODE 7590-01-PNUCLEAR REGULATORY COMMISSION[Docket No. 72-26; NRC-2012-0312]Diablo Canyon, Independent Spent Fuel Storage Installation; License Amendment Request, Opportunity To Request a Hearing, Petition for Leave To Intervene, and Commission Order Imposing Procedures for Document Access to Sensitive Unclassified Non-Safeguards InformationAGENCY:

Nuclear Regulatory Commission.

ACTION:

Notice of amendment and opportunity to request a hearing and petition for leave to intervene, and order.

DATES:

A request for hearing and/or petition for leave to intervene must be filed by March 4, 2013. Any potential party as defined in § 2.4 of Title 10 of the Code of Federal Regulations (10 CFR) who believes access to Sensitive Unclassified Non-Safeguards Information is necessary to respond to this notice must request document access by January 14, 2013.

ADDRESSES:

Please refer to Docket ID NRC-2012-0312 when contacting the NRC about the availability of information regarding this document. You may access information related to this document, which the NRC possesses and is publicly available, by any of the following methods:

• NRC's Agencywide Documents Access and Management System (ADAMS): You may access publicly available documents online in the NRC Library at http://www.nrc.gov/reading-rm/adams.html. To begin the search, select “ADAMS Public Documents” and then select “Begin Web-based ADAMS Search.” For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or by email to pdr.resource@nrc.gov. The ADAMS accession number for each document referenced in this notice (if that document is available in ADAMS) is provided the first time that a document is referenced.

The U.S. Nuclear Regulatory Commission (NRC or the Commission) has received, by letter dated July 31, 2012, a license amendment application from Pacific Gas and Electric Company (PG&E), requesting amend its Special Nuclear Material License No. SNM-2511, (ADAMS Accession No. ML12227A575) under the provisions of 10 CFR Part 72 at its Diablo Canyon Independent Spent Fuel Storage Installation (ISFSI) site located in San Luis Obispo County, California. Special Nuclear Material License No. SNM-2511 authorizes the licensee to receive, possess, store and transfer spent fuel, reactor-related Greater than Class C waste and other radioactive materials associated with spent fuel storage at the Diablo Canyon ISFSI. Specifically, the amendment, if granted, will revise Materials License No. SNM-2511 as follows:

1. Changes to Technical Specifications (TS):

a. Tables 2.1-7, 2.1-8, and 2.1-9 in TS 2.0, “Approved Contents,” are revised allowing up to a 28.74kW heat load for uniform loading and 25.572kW heat load for regionalized loading. This changes the maximum allowable decay heat per storage location, in watts, determined from Table 2.1-7 or 2.1-9 to be consistent with this proposed license amendment request. Table 2.1-8 is revised to delete the note that limits Zirlo clad fuel to a burnup of 45,000 MWD/MTU and replace the existing Note 3 with a note that refers to TS 2.3, “Alternate MPC-32 Fuel Selection Criteria.”

c. TS 3.1.1, “Multi-Purpose Canister (MPC),” Surveillance Requirement (SR) 3.1.1.2 is revised to add a new helium backfill pressure range for MPCs with heat loads less than or equal to 28.74kW.

d. TS 3.1.4, “Supplemental Cooling System,” Applicability is changed to only be applicable for unloading of high burnup fuel loaded in 2012 under the provisions of SNM-2511, Amendment No. 2.

An NRC administrative review, documented in a letter to PG&E dated November 5, 2012, found the application acceptable to begin a technical review. If the NRC approves the amendment, the approval will be documented in an amendment to NRC SNM-2511. However, before approving the proposed amendment, the NRC will need to make the findings required by the Atomic Energy Act of 1954, as amended (the Act), and the NRC's regulations. These findings will be documented in a Safety Evaluation Report and an Environmental Assessment. The licensee has stated that the license amendment qualifies for a categorical exclusion in accordance with 10 CFR 51.22.

II. Opportunity To Request a Hearing

Requirements for hearing requests and petitions for leave to intervene are found in 10 CFR 2.309, “Hearing requests, petitions to intervene, requirements for standing, and contentions.” Interested persons should consult 10 CFR 2.309, which is available at the NRC's PDR, located at O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852 or call the PDR at 1-800-397-4209 or 301-415-4737. The NRC's regulations are available online in the NRC Library at http://www.nrc.gov/reading-rm/adams.html.

III. Petitions for Leave To Intervene

Any person whose interest may be affected by this proceeding and who wishes to participate as a party in the proceeding must file a written petition for leave to intervene. As required by 10 CFR 2.309, a petition for leave to intervene shall set forth with particularity the interest of the petitioner in the proceeding and how that interest may be affected by the results of the proceeding. The petition must provide the name, address, and telephone number of the petitioner and specifically explain the reasons why intervention should be permitted with particular reference to the following factors: (1) The nature of the petitioner's right under the Act to be made a party to the proceeding; (2) the nature and extent of the petitioner's property, financial, or other interest in the proceeding; and (3) the possible effect of any order that may be entered in the proceeding on the petitioner's interest.

A petition for leave to intervene must also include a specification of the contentions that the petitioner seeks to have litigated in the hearing. For each contention, the petitioner must provide a specific statement of the issue of law or fact to be raised or controverted, as well as a brief explanation of the basis for the contention. Additionally, the petitioner must demonstrate that the issue raised by each contention is within the scope of the proceeding and is material to the findings the NRC must make to support the granting of a license amendment in response to the application. The petition must also include a concise statement of the alleged facts or expert opinions which support the position of the petitioner and on which the petitioner intends to rely at hearing, together with references to the specific sources and documents on which the petitioner intends to rely. Finally, the petition must provide sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact, including references to specific portions of the application for amendment that the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes that the application for amendment fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioner's belief. Each contention must be one that, if proven, would entitle the petitioner to relief.

Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing with respect to resolution of that person's admitted contentions, including the opportunity to present evidence and to submit a cross-examination plan for cross-examination of witnesses, consistent with NRC regulations, policies, and procedures. The Atomic Safety and Licensing Board (the Licensing Board) will set the time and place for any prehearing conferences and evidentiary hearings, and the appropriate notices will be provided.

Requests for hearing, petitions for leave to intervene, and motions for leave to file contentions that are filed after the deadline in 10 CFR 2.309(b) will not be entertained absent a determination by the presiding officer that the new or amended filing demonstrates good cause by satisfying the following three factors in 10 CFR 2.309(c)(1): (i) The information upon which the filing is based was not previously available; (ii) the information upon which the filing is based is materially different from information previously available; and (iii) the filing has been submitted in a timely fashion based on the availability of the subsequent information.

A State, local governmental body, federally recognized Indian Tribe, or agency thereof may submit a petition to the Commission to participate as a party under 10 CFR 2.309(h)(1) and (2). The petition should state the nature and extent of the petitioner's interest in the proceeding. The petition should be submitted to the Commission by March 4, 2013. The petition must be filed in accordance with the filing instructions in section IV of this document, and should meet the requirements for petitions for leave to intervene set forth in this section, except that under 2.309(h)(2) a State, local governmental body, or federally recognized Indian tribe does not need to address the standing requirements in 10 CFR 2.309(d) if the facility is located within its boundaries. A State, local governmental body, federally recognized Indian Tribe, or agency thereof may also have the opportunity to participate under 10 CFR 2.315(c).

If a hearing is granted, any person who does not wish to become a party to the proceeding may, in the discretion of the presiding officer, be permitted to make a limited appearance under 10 CFR 2.315(a), by making an oral or written statement of his or her position on the issues at any session of the hearing or at any pre-hearing conference, within the limits and conditions fixed by the presiding officer.

IV. Electronic Submissions (E-Filing)

All documents filed in NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with the NRC E-Filing rule (72 FR 49139, August 28, 2007). The E-Filing process requires participants to submit and serve all adjudicatory documents over the internet, or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek an exemption in accordance with the procedures described below.

To comply with the procedural requirements of E-Filing, at least 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at hearing.docket@nrc.gov, or by telephone at 301-415-1677, to request (1) a digital identification (ID) certificate, which allows the participant (or its counsel or representative) to digitally sign documents and access the E-Submittal server for any proceeding in which it is participating; and (2) advise the Secretary that the participant will be submitting a request or petition for hearing (even in instances in which the participant, or its counsel or representative, already holds an NRC-issued digital ID certificate). Based upon this information, the Secretary will establish an electronic docket for the hearing in this proceeding if the Secretary has not already established an electronic docket.

Information about applying for a digital ID certificate is available on the NRC's public Web site at http://www.nrc.gov/site-help/e-submittals/apply-certificates.html. System requirements for accessing the E-Submittal server are detailed in the NRC's “Guidance for Electronic Submission,” which is available on the NRC's public Web site at http://www.nrc.gov/site-help/e-submittals.html. Participants may attempt to use other software not listed on the Web site, but should note that the NRC's E-Filing system does not support unlisted software, and the NRC Meta System Help Desk will not be able to offer assistance in using unlisted software.

If a participant is electronically submitting a document to the NRC in accordance with the E-Filing rule, the participant must file the document using the NRC's online, Web-based submission form. In order to serve documents through the Electronic Information Exchange System, users will be required to install a Web browser plug-in from the NRC's Web site. Further information on the Web-based submission form, including the installation of the Web browser plug-in, is available on the NRC's public Web site at http://www.nrc.gov/site-help/e-submittals.html.

Once a participant has obtained a digital ID certificate and a docket has been created, the participant can then submit a request for hearing or petition for leave to intervene. Submissions should be in Portable Document Format (PDF) in accordance with NRC guidance available on the NRC's public Web site at http://www.nrc.gov/site-help/e-submittals.html. A filing is considered complete at the time the documents are submitted through the NRC's E-Filing system. To be timely, an electronic filing must be submitted to the E-Filing system no later than 11:59 p.m. Eastern Time on the due date. Upon receipt of a transmission, the E-Filing system time-stamps the document and sends the submitter an email notice confirming receipt of the document. The E-Filing system also distributes an email notice that provides access to the document to the NRC's Office of the General Counsel and any others who have advised the Office of the Secretary that they wish to participate in the proceeding, so that the filer need not serve the documents on those participants separately. Therefore, applicants and other participants (or their counsel or representative) must apply for and receive a digital ID certificate before a hearing request/petition to intervene is filed so that they can obtain access to the document via the E-Filing system.

A person filing electronically using the NRC's adjudicatory E-Filing system may seek assistance by contacting the NRC Meta System Help Desk through the “Contact Us” link located on the NRC's public Web site at http://www.nrc.gov/site-help/e-submittals.html, by email to MSHD.Resource@nrc.gov, or by a toll-free call to 1-866-672-7640. The NRC Meta System Help Desk is available between 8 a.m. and 8 p.m., Eastern Time, Monday through Friday, excluding government holidays.

Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. A presiding officer, having granted an exemption request from using E-Filing, may require a participant or party to use E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists.

Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket which is available to the public at http://ehd1.nrc.gov/ehd/, unless excluded pursuant to an order of the Commission, or the presiding officer. Participants are requested not to include personal privacy information, such as social security numbers, home addresses, or home phone numbers in their filings, unless an NRC regulation or other law requires submission of such information. With respect to copyrighted works, except for limited excerpts that serve the purpose of the adjudicatory filings and would constitute a Fair Use application, participants are requested not to include copyrighted materials in their submission.

Order Imposing Procedures for Access to Sensitive Unclassified Non-Safeguards Information for Contention Preparation

A. This Order contains instructions regarding how potential parties to this proceeding may request access to documents containing Sensitive Unclassified Non-Safeguards Information (SUNSI).

B. Within 10 days after publication of this notice of hearing and opportunity to petition for leave to intervene, any potential party who believes access to SUNSI is necessary to respond to this notice may request such access. A “potential party” is any person who intends to participate as a party by demonstrating standing and filing an admissible contention under 10 CFR 2.309. Requests for access to SUNSI submitted later than 10 days after publication will not be considered absent a showing of good cause for the late filing, addressing why the request could not have been filed earlier.

C. The requester shall submit a letter requesting permission to access SUNSI to the Office of the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemakings and Adjudications Staff, and provide a copy to the Associate General Counsel for Hearings, Enforcement and Administration, Office of the General Counsel, Washington, DC 20555-0001. The expedited delivery or courier mail address for both offices is: U.S. Nuclear Regulatory Commission, 11555 Rockville Pike, Rockville, Maryland 20852. The email address for the Office of the Secretary and the Office of the General Counsel are Hearing.Docket@nrc.gov and OGCmailcenter@nrc.gov, respectively.1 The request must include the following information:

1 While a request for hearing or petition to intervene in this proceeding must comply with the filing requirements of the NRC's “E-Filing Rule,” the initial request to access SUNSI under these procedures should be submitted as described in this paragraph.

(1) A description of the licensing action with a citation to this Federal Register notice;

(2) The name and address of the potential party and a description of the potential party's particularized interest that could be harmed by the action identified in C.(1);

(3) The identity of the individual or entity requesting access to SUNSI and the requester's basis for the need for the information in order to meaningfully participate in this adjudicatory proceeding. In particular, the request must explain why publicly-available versions of the information requested would not be sufficient to provide the basis and specificity for a proffered contention;

D. Based on an evaluation of the information submitted under paragraph C.(3) the NRC staff will determine within 10 days of receipt of the request whether:

(1) There is a reasonable basis to believe the petitioner is likely to establish standing to participate in this NRC proceeding; and

(2) The requestor has established a legitimate need for access to SUNSI.

E. If the NRC staff determines that the requestor satisfies both D.(1) and D.(2) above, the NRC staff will notify the requestor in writing that access to SUNSI has been granted. The written notification will contain instructions on how the requestor may obtain copies of the requested documents, and any other conditions that may apply to access to those documents. These conditions may include, but are not limited to, the signing of a Non-Disclosure Agreement or Affidavit, or Protective Order 2 setting forth terms and conditions to prevent the unauthorized or inadvertent disclosure of SUNSI by each individual who will be granted access to SUNSI.

2 Any motion for Protective Order or draft Non-Disclosure Affidavit or Agreement for SUNSI must be filed with the presiding officer or the Chief Administrative Judge if the presiding officer has not yet been designated, within 30 days of the deadline for the receipt of the written access request.

F. Filing of Contentions. Any contentions in these proceedings that are based upon the information received as a result of the request made for SUNSI must be filed by the requestor no later than 25 days after the requestor is granted access to that information. However, if more than 25 days remain between the date the petitioner is granted access to the information and the deadline for filing all other contentions (as established in the notice of hearing or opportunity for hearing), the petitioner may file its SUNSI contentions by that later deadline.

G. Review of Denials of Access.

(1) If the request for access to SUNSI is denied by the NRC staff after a determination on standing and need for access, the NRC staff shall immediately notify the requestor in writing, briefly stating the reason or reasons for the denial.

(2) The requester may challenge the NRC staff's adverse determination by filing a challenge within 5 days of receipt of that determination with: (a) The presiding officer designated in this proceeding; (b) if no presiding officer has been appointed, the Chief Administrative Judge, or if he or she is unavailable, another administrative judge, or an administrative law judge with jurisdiction pursuant to 10 CFR 2.318(a); or (c) if another officer has been designated to rule on information access issues, with that officer.

H. Review of Grants of Access. A party other than the requester may challenge an NRC staff determination granting access to SUNSI whose release would harm that party's interest independent of the proceeding. Such a challenge must be filed with the Chief Administrative Judge within 5 days of the notification by the NRC staff of its grant of access.

If challenges to the NRC staff determinations are filed, these procedures give way to the normal process for litigating disputes concerning access to information. The availability of interlocutory review by the Commission of orders ruling on such NRC staff determinations (whether granting or denying access) is governed by 10 CFR 2.311.3

3 Requesters should note that the filing requirements of the NRC's E-Filing Rule (72 FR 49139; August 28, 2007) apply to appeals of NRC staff determinations (because they must be served on a presiding officer or the Commission, as applicable), but not to the initial SUNSI request submitted to the NRC staff under these procedures.

I. The Commission expects that the NRC staff and presiding officers (and any other reviewing officers) will consider and resolve requests for access to SUNSI, and motions for protective orders, in a timely fashion in order to minimize any unnecessary delays in identifying those petitioners who have standing and who have propounded contentions meeting the specificity and basis requirements in 10 CFR Part 2. Attachment 1 to this Order summarizes the general target schedule for processing and resolving requests under these procedures.

VI. Further Information

Documents related to this action, including the application for renewal and supporting documentation, are available electronically at the NRC's Electronic Reading Room at http://www.nrc.gov/reading-rm/adams.html. From this site, you can access the NRC's Agencywide Document Access and Management System (ADAMS), which provides text and image files of NRC's public documents. The ADAMS accession numbers for the documents related to this notice are: License Renewal Application documents dated July 31, 2012, are available in ADAMS under Accession No. ML12227A575 and ML12227A576. The acceptance review letter dated November 5, 2012 is available in ADAMS under Accession No. ML12311A101. If you do not have access to ADAMS or if there are problems in accessing the documents located in ADAMS, contact the NRC Public Document Room (PDR) Reference staff at 1-800-397-4209, 301-415-4737 or by email to pdr.resource@nrc.gov. These documents may also be viewed electronically on the public computers located at the NRC's PDR, O 1 F21, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852. The PDR reproduction contractor will copy documents for a fee.

It is so ordered.

Dated at Rockville, Maryland, this 27th day of December 2012.

For the Commission.

Andrew L. Bates,Acting Secretary of the Commission.Attachment 1—General Target Schedule for Processing and Resolving Requests for Access to Sensitive Unclassified Non-Safeguards Information in This ProceedingDayEvent/activity0Publication of Federal Register notice of hearing and opportunity to petition for leave to intervene, including order with instructions for access requests.10Deadline for submitting requests for access to Sensitive Unclassified Non-Safeguards Information (SUNSI) with information: supporting the standing of a potential party identified by name and address; describing the need for the information in order for the potential party to participate meaningfully in an adjudicatory proceeding.60Deadline for submitting petition for intervention containing: (i) Demonstration of standing; (ii) all contentions whose formulation does not require access to SUNSI (+25 Answers to petition for intervention; +7 petitioner/requestor reply).20Nuclear Regulatory Commission (NRC) staff informs the requester of the staff's determination whether the request for access provides a reasonable basis to believe standing can be established and shows need for SUNSI. (NRC staff also informs any party to the proceeding whose interest independent of the proceeding would be harmed by the release of the information.) If NRC staff makes the finding of need for SUNSI and likelihood of standing, NRC staff begins document processing (preparation of redactions or review of redacted documents).25If NRC staff finds no “need” or no likelihood of standing, the deadline for petitioner/requester to file a motion seeking a ruling to reverse the NRC staff's denial of access; NRC staff files copy of access determination with the presiding officer (or Chief Administrative Judge or other designated officer, as appropriate). If NRC staff finds “need” for SUNSI, the deadline for any party to the proceeding whose interest independent of the proceeding would be harmed by the release of the information to file a motion seeking a ruling to reverse the NRC staff's grant of access.30Deadline for NRC staff reply to motions to reverse NRC staff determination(s).40(Receipt +30) If NRC staff finds standing and need for SUNSI, deadline for NRC staff to complete information processing and file motion for Protective Order and draft Non-Disclosure Affidavit. Deadline for applicant/licensee to file Non-Disclosure Agreement for SUNSI.AIf access granted: Issuance of presiding officer or other designated officer decision on motion for protective order for access to sensitive information (including schedule for providing access and submission of contentions) or decision reversing a final adverse determination by the NRC staff.A + 3Deadline for filing executed Non-Disclosure Affidavits. Access provided to SUNSI consistent with decision issuing the protective order.A + 28Deadline for submission of contentions whose development depends upon access to SUNSI. However, if more than 25 days remain between the petitioner's receipt of (or access to) the information and the deadline for filing all other contentions (as established in the notice of hearing or opportunity for hearing), the petitioner may file its SUNSI contentions by that later deadline.A + 53(Contention receipt +25) Answers to contentions whose development depends upon access to SUNSI.A + 60(Answer receipt +7) Petitioner/Intervenor reply to answers.>A + 60Decision on contention admission.[FR Doc. 2012-31528 Filed 12-31-12; 8:45 am]BILLING CODE 7590-01-PNUCLEAR REGULATORY COMMISSION[NRC-2012-0002]Sunshine Federal Register NoticeAGENCY HOLDING THE MEETINGS:

* The schedule for Commission meetings is subject to change on short notice. To verify the status of meetings, call (recording)—301-415-1292. Contact person for more information: Rochelle Bavol, 301-415-1651.

The NRC Commission Meeting Schedule can be found on the Internet at: http://www.nrc.gov/public-involve/public-meetings/schedule.html.

The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings, or need this meeting notice or the transcript or other information from the public meetings in another format (e.g. braille, large print), please notify Kimberly Meyer, NRC Disability Program Manager, at 301-287-0727, or by email at kimberly.meyer-chambers@nrc.gov. Determinations on requests for reasonable accommodation will be made on a case-by-case basis.

This notice is distributed electronically to subscribers. If you no longer wish to receive it, or would like to be added to the distribution, please contact the Office of the Secretary, Washington, DC 20555 (301-415-1969), or send an email to darlene.wright@nrc.gov.

Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (the “Paperwork Reduction Act”), the Securities and Exchange Commission (the “Commission”) is soliciting comments on the collection of information summarized below. The Commission plans to submit this existing collection of information to the Office of Management and Budget (“OMB”) for extension and approval.

Rule 15c3-4 (17 CFR 240.15c3-4) (the “Rule”) under the Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.) (the “Exchange Act”) requires certain broker-dealers that are registered with the Commission as OTC derivatives dealers, or who compute their net capital charges under Appendix E to Rule 15c3-1 (17 CFR 240.15c3-1) (“ANC firms”), to establish, document, and maintain a system of internal risk management controls. The Rule sets forth the basic elements for an OTC derivatives dealer or an ANC firm to consider and include when establishing, documenting, and reviewing its internal risk management control system, which are designed to, among other things, ensure the integrity of an OTC derivatives dealer's or an ANC firm's risk measurement, monitoring, and management process, to clarify accountability at the appropriate organizational level, and to define the permitted scope of the dealer's activities and level of risk. The Rule also requires that management of an OTC derivatives dealer or an ANC firm must periodically review, in accordance with written procedures, the firm's business activities for consistency with its risk management guidelines.

The staff estimates that the average amount of time a new OTC derivatives dealer will spend establishing and documenting its risk management control system is 2,000 hours and that, on average, a registered OTC derivatives dealer will spend approximately 200 hours each year to maintain (e.g., reviewing and updating) its risk management control system.1 Currently, four firms are registered with the Commission as OTC derivatives dealers. The staff estimates that approximately four additional OTC derivatives dealers may become registered within the next three years. Thus, the estimated annualized burden would be 800 hours for the four OTC derivatives dealers currently registered with the Commission to maintain their risk management control systems,2 2,666 hours for the four new OTC derivatives dealers to establish and document their risk management control systems,3 and 400 hours for the four new OTC derivatives dealers to maintain their risk management control systems.4 Accordingly, the staff estimates the total annualized burden associated with Rule 15c3-4 for the eight OTC derivatives dealers will be approximately 3,866 hours annually.

1 This notice does not cover the hour burden associated with ANC firms, because the hour burden for ANC firms is included in the Paperwork Reduction Act collection for Rule 15c3-1, which requires ANC firms to comply with specific provisions of Rule 15c3-4 in Appendix E to Rule 15c3-1. See 17 CFR 240.15c3-1(a)(7)(iii), 17 CFR 240.15c3-1e(a)(1)(ii), and 17 CFR 240.15c3-1e(a)(1)(viii)(C).

2 (200 hours × 4 firms) = 800.

3 (2000 hours × 1.333 firms) = 2,666.

4 (200 hours × 4 firms x/2) = 400 {the number is divided by two to show an average, since it is assumed that the four new OTC derivatives dealers will register in even intervals over the three years}.

The staff believes that the cost of complying with Rule 15c3-4 will be approximately $279 per hour.5 This per hour cost is based upon an annual average hourly salary for a compliance manager who would be responsible for ensuring compliance with the requirements of Rule 15c3-4. Accordingly, the total annualized cost for all affected OTC derivatives dealers is estimated to be $1,078,614.6

5 The $279 per hour salary figure for a compliance manager is from SIFMA's Management & Professional Earnings in the Securities Industry 2011, modified by Commission staff to account for an 1800-hour work-year and multiplied by 5.35 to account for bonuses, firm size, employee benefits and overhead.

6 3,866 hours × $279 per hour = $1,078,614.

Written comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's estimates of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.

The Commission may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a valid OMB control number.

Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”) 1 and Rule 19b-4 thereunder 2 notice is hereby given that on December 19, 2012, Stock Clearing Corporation of Philadelphia (“SCCP”) filed with the Securities and Exchange Commission (“Commission”) the proposed rule change as described in Items I, II, and III below, which Items have been prepared by SCCP. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons.

1 15 U.S.C. 78s(b)(1).

2 17 CFR 240.19b-4.

I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change

SCCP proposes a rule change with respect to the amendment of the by-laws of its parent corporation, The NASDAQ OMX Group, Inc. (“NASDAQ OMX” or the “Corporation”). The text of the proposed rule change is available at http://nasdaqomxphlx.cchwallstreet.com/nasdaqomxphlx/sccp/, at SCCP's principal office, and at the Commission's Public Reference Room.

In its filing with the Commission, the Corporation included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Corporation has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.

NASDAQ OMX is proposing amendments to provisions of its By-Laws pertaining to the compositional requirements of the NASDAQ OMX Board. The changes are primarily focused on amending the definition of “Industry Director” (and “Industry committee member”) 3 to make the definition less restrictive, but in a manner that the Corporation believes will continue to serve the purpose of ensuring that members and member organizations of Self-Regulatory Subsidiaries 4—the self-regulatory organizations owned by NASDAQ OMX—do not have disproportionate influence on its governance. In making the change, NASDAQ OMX is adapting concepts already approved by the Commission in its review of the Independence Policy of the NYSE Euronext Board of Directors (the “Independence Policy”).5 The proposed rule change also makes several other changes to provisions pertaining to the Board's compositional requirements and categorization of Directors.

3 The term “committee member” in the By-Laws refers to membership in the committees authorized under Section 4.13 of the By-Laws, such as the Executive Committee and the Audit Committee. Under the By-Laws and the Delaware General Corporation Law, all members of committees with the power and authority to act on behalf